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J/itilUnw rutin 

XV KATHARINE E. COHAN 



NATURE AND TENDENCY 



OF 



FREE INSTITUTIONS. 



CONSIDERATIONS 

UPON THE 

NATURE AND TENDENCY 

OF 

FREE INSTITUTIONS. 



BY FREDERICK GRIMKE. 



CINCINNATI: 
II. W. DERBY & CO, PUBLISHERS. 

NEW-YORK : 
A. S. BARNES & CO. 

1848. 



Entered according to act of Congress, in the year of our Lord 
one thousand eight hundred and forty-eight, by Frederick Grimke, 
in the Clerk's Office of the District Court for the District of Ohio. 



CINCINNATI: 
MORGAN AND OVEREND, PRINTERS. 



NOTE. 



The following work, commenced in 1840, was finished 
eighteen months ago; a very considerable time, therefore, 
before the late revolutions in Europe. Nor has the author 
thought it w r orth while to make any additions or alterations 
in consequence. These events constitute an episode, and 
a very important one, in the history of civil society ; but 
they exert no disturbing influence upon fundamental princi- 
ples, if we are sure we are in the possession of these. Nor, 
if this were otherwise, could the events of a few months 
have power to instruct us in a lesson which should have 
been previously learned from a wide and diligent survey 
of man's history. Doubtless, the human mind has never 
been stirred more deeply, society was never in a state 
of so great fermentation. The revolution of 1789 has, at 
least, taught us one lesson, — not to confound immediate 
consequences with general and permanent results, not to 
pronounce France, or any other European state, " blotted 
out of the map of Europe," if the framework of society is 
not immediately adjusted, if all classes do not instantly fall 
into their proper places. 

In times of great public commotion, the minds of very 
many become really disordered, and not merely excited 



vi NOTE. 

and exasperated. The effect is similar to that which some- 
times ensues the keen anguish occasioned by domestic 
afflictions of one kind or another. Delirium is considered 
by physicians a favorable symptom in some cases of dis- 
ease; the patient recovers more certainly in consequence. 
So, in great political troubles, the mental horizon clears off 
the more thoroughly after the struggle has ceased. But 
this struggle may be of longer or shorter duration, since the 
life of a nation is not limited, like that of the individual. 

But although the late events in Europe cannot overturn 
principles, they may afford matter for the illustration of 
principles. Nor could any one turn aside from them, if 
opportunity was allowed to decipher them. But these 
events have not been sufficiently developed, in order to 
answer this auxiliary purpose. The most advisable course, 
therefore, is to be silent concerning them for the present. 
Chillicothe, May 22, 1848. 



TABLE OF CONTENTS. 



BOOK I. 

PAGE. 

CHAPTER I. — General views and difficulties of the science of govern- 
ment. - - - - - - -1 

CHAPTER II. — Foundation of government; reason of the rule that 

the majority have the right to govern. - - - - 11 

CHAPTER III. — Nature and operation of elective government. - 28 

CHAPTER IV. — The principle of equality; to what extent can it be 

carried. - - - - - - - 43 

CHAPTER V. — The electoral franchise; whether any, and what 
limits should be imposed. ------ 58 

CHAPTER VI. — The mode of electing the public officers. - 74 

CHAPTER VII. — Parties; the place they occupy, the office they per- 
form in a republic. -------92 

CHAPTER VIII. — A republic is essentially a government of restraint, 108 

BOOK II. 

CHAPTER I. — A written constitution ; its efficacy in giving meaning 

and consistency to the political institutions. - - - - 123 

CHAPTER II. — That in a republic the governors and the governed 

are identical and different. - - - - - 134 

CHAPTER III. — Sovereignty of the people ; import of the phrase. - 154 

CHAPTER IV. —Political toleration ; how far practicable. - 165 



viii TABLE OF CONTENTS. 

CHAPTER V. — Idea of monarchical government. - - - 172 

CHAPTER VI. — Notice of the English constitution. - - 179 

CHAPTER VII. — The legislative power. - - - - 189 

BOOK III . 

CHAPTER I.— Religious institutions. 241 

CHAPTER II. — Institutions for the education of the people. - - 260 

CHAPTER III. — Military institutions. 278 

CHAPTER IV. — Institution of the press. - - - - 296 

CHAPTER V. — Aristocratical institutions. 305 

CHAPTER VI.— Institution of slavery. - - - - 319 

CHAPTER VII.— The judicial power. - 341 



BOOK IV. 

CHAPTER I. — On what in America is sometimes termed the veto 
power of the states. ------- 

CHAPTER II. — The executive power. - 

CHAPTER III. — The various classes of society, their mutual influ- 
ence, and their influence upon the motions of the government. 
CHAPTER IV. — Notice of the French constitution. 
CHAPTER V. — Is the American government a balanced one 1 
CHAPTER VI.— The influence of America on Europe. - 



379 
399 

455 
484 
502 
513 



NATURE AND TENDENCY 

OF 

FREE INSTITUTIONS. 



BOOK I. 



CHAPTER I . 

GENERAL VIEWS AND DIFFICULTIES OF THE SCIENCE OF GOVERNMENT. 

Amidst the general progress which the human mind has made 
during the last two hundred years, there is one science which has 
remained nearly stationary; and that is the philosophy of government. 
It is true that all our knowledge is deduced from facts ; and, it is 
equally true, that it is not in our power to create any one of those facts. 
The principles which go to make up what we denominate a science, are 
nothing more than the philosophy of facts; and until the facts are 
given, we cannot find the principles. But, it is remarkable that, 
during the period I have referred to, a wider range of facts has been 
laid open to human observation and scrutiny, than in any period of 
similar duration in the history of our race. For if we commence with 
the year 1642, in the midst of the great struggle between liberty and 
power in Great Britain, and come down to the present day, we shall 
find that nearly all the great revolutions in human affairs, which have 
sensibly affected the social organization, the structure of government, 
and the functions of rulers, are crowded into that compass. The 
*i 1 ■ \ . 



2 



NATURE AND TENDENCY 



[book I. 



inquiry, therefore, is not only the most natural in the world, but it 
forces itself irresistibly upon us, why, in the midst of so great and 
so general a movement of the human mind, the science of government 
has seemed to stand still. It can never be necessary to show all 
possibly existing facts ; otherwise no part of knowledge would ever be 
brought to completeness. 

Several causes may be assigned for the slow progress of the science. 
The first consists in its intrinsic difficulties. There is no branch of 
knowledge which to so great an extent demands the application of 
abstract truth to particular facts ; none in which the facts are so diver- 
sified, and so difficult to reduce to general rules. The very circum- 
stance, therefore, that the two last centuries have been so prolific of 
materials, that they have afforded such an immense accumulation of 
facts, creates an impediment. Without these we cannot proceed a 
step, and yet with them the greatest powers of analysis are baffled in 
the endeavor to trace out those principles which shall every where be 
regarded as forming the great elements of the science. I can easily 
imagine that very many of the most thoughtful minds, both in 
Europe and America, have occupied a whole lifetime in surveying, 
with intense interest and an eagle eye, the changes which society and 
government have undergone in the last sixty or seventy years, and 
yet have recoiled from the attempt to reduce into a system such a 
vast mass of experience. 

The second reason which I would assign is, that government is the 
science not only of what is, and what ought to be, but in addition to 
these, of what may be made to be also. It thus unites in itself the 
difficulties of all other sciences, and conducts to inquiries more 
complicated than any one of them singly. We can create no new 
facts, but we may vary indefinitely the combinations of those which 
are already known. If it is a painful effort, therefore, to apply 
abstract truths to particular facts, the difficulty is very much increased 
when we desire to make an entirely new tlisposition of those facts ; 
when, for instance, we wish to alter existing institutions, and to give 
a new form to the whole, or to some part, of the government. 

Another impediment to the advancement of the science has arisen 
from the extreme backwardness which both writers and statesmen 
have constantly discovered in speaking out all that they know and 
believe. It is supposed that there are a great many secrets in 



CHAP. I.] 



OF FREE INSTITUTIONS. 



3 



government which will not bear to be divulged to the generality of 
of mankind. We have read of the secret and the open doctrine of 
the ancient philosophers. Some things they revealed to the multitude, 
while others were hidden from all but a select few. The same custom 
existed among some of the fathers of the African church; although 
it has been endeavored to be explained and palliated by eminent 
ecclesiastical writers. But the practice was by no means confined to 
the ancients. It has existed from all time, and has prevailed exten- 
sively, though not avowedly, among the philosophers and politicians of 
modern times. It is now beginning to fall into disrepute, since what 
are termed the multitude are increasing so fast in knowledge and 
information, that it is no longer an easy matter to keep any secrets, 
and since, on that very account, the disclosure can be productive of 
no detriment. For although the first effect, of finding out many 
things which were before hidden, is to make us fear nothing, not even 
the most violent changes; yet the ultimate effect is to make us fear 
many things, and to show us precipices and hindrances at every step 
which we take. 

The last cause which I shall mention as retarding the progress of 
the science is, that in many instances the minds which are particularly 
fitted to extend its bounds are withdrawn from speculation into the 
field of active life. Profound thought, the ability to take the philo- 
sophical view, which belongs to things the most common and familiar, 
joined to a keen insight into men's character and dispositions, are ne- 
cessary to penetrate into the principles of science. But he who pos- 
sesses these qualities is very apt to be won over to one or other of the 
great parties which share the mastery of the country. The field of 
speculation, the field of imagination, and the field of action, divide 
between themselves the empire of man's exertions. No one has been 
able to compass one of these in a lifetime ; while the sense of enjoy- 
ment which is derived from mixing in active life is so much greater 
than is afforded by abstract speculation, that few minds have sufficient 
fortitude to forego the first for the sake of the more brilliant and 
durable fame which attends the last. 

Writers on political philosophy have for the most part employed 
themselves in studying what is termed the mechanism of government, 
rather than in unfolding the structure of society. This is often the 
cause of great infirmity in the most ingenious speculations; since 



4 



NATURE AND TENDENCY 



[book I. 



without pursuing the last course, we can neither thoroughly decipher 
existing institutions, nor see our way clearly in binding together the 
general principles which are fairly deducible from them. All govern- 
ments are to a great degree dependent upon the manners, habits, and 
dispositions of the people among whom they subsist. This connection 
is closer and more striking where the institutions are democratic ; and 
as the American constitutions are the only example of the thorough 
establishment of such institutions, it is no wonder the error I have 
referred to has prevailed so extensively in the old world. It is both 
our privilege, and our misfortune, that our knowledge is so completely 
bounded by our experience: our privilege, because we are withheld 
from a multitude of visionary, and fruitless expedients to better our 
condition, and our misfortune, because we are sometimes inclosed in 
such a narrow circle of experience, as to remove us from the contem- 
plation of a world of new facts which are transpiring beyond us. 

The reason then why it is of so much importance to examine and 
understand the structure of society, and not merely the machinery of 
government, is because at the present day, more than at any former 
period, the political institutions are molded by the manners. It is 
true, every form of government may strictly be said to depend upon 
the constitution of society — upon the social organization in which it has 
taken root. But this dependence is of a totally different character, 
in different countries. In some, the manners exert a positive influence; 
while in others, they have properly a negative influence only. In a 
commonwealth, where the standard of popular intelligence is high, and 
no impediment exists to the exercise of that popular authority which 
rightfully springs from such a state, the people may truly be said to 
create and to uphold the government. On the contrary, where the 
population is sunk in ignorance and apathy, government assumes the 
character of a self existing institution, for there is no power beyond 
to direct and control it. In one instance, the will of society impresses 
itself as an active power upon the institutions, both ordaining and 
controlling them : in the other, for defec-t of will, the government is 
simply permitted to be what chance, or circumstances, originally made 
it. The political institutions of Russia, and the United States, equally 
depend upon the social organization; but in the former the influence 
is negative, in the latter it is direct and positive. In the former, the 
people, by their inaction, contribute to rear the fabric of despotism ; 



CHAP. I.] 



OF FREE INSTITUTIONS. 



5 



in the last, they have created free institutions. It follows, that in 
proportion as the influence is of a positive character, will the institu- 
tions incline to the form of free government : for there may be every 
degree of this influence, stamping the greatest variety upon different 
schemes of government. Thus the English people are distinguished 
for the enjoyment of a greater degree of liberty than the French; and 
the last have made such noble advances in the same career during the 
last twenty years, as to place their government entirely in advance of 
the Spanish, or Portuguese. Sometimes a positive, influence is exerted 
Upon one part of the government ; one department undergoes a funda- 
mental change, while others remain untouched. In other instances, 
no great alteration is made; the theory of the government continues 
as before ; but such is the stringency and force of that invisible agent 
which we term public opinion, that the conduct and behavior of all 
public men, the tone and temper of the public administration, are 
materially improved. 

The legislature is that department which is apt to be first molded 
by the direct intervention of the popular will. It becomes a repre- 
sentative body, long before it occurs to any one that it is possible to 
render the executive and judiciary elective also. The legislature 
seems to touch more extensively, if not more immediately, upon the 
interests of society than any other department ; and it is the first, 
therefore, to which development is given. The judiciary would 
appear to have quite as intimate a connection with the business, the 
daily transactions of the people^ as the legislature; but as its functions 
are supposed to consist simply in making application of a set of ready 
made rules, and, therefore, to be inconsistent with the attainment of 
any substantive power, it does not engage public attention so early, 
nor attract so general an interest, as it is entitled to do. 

One great end which legislators in constructing government have 
proposed to accomplish, is so to adjust the parts of which it is com- 
posed, that they may act as checks upon one another. This scheme 
has given rise to the theory of checks and balances. But hardly any 
one has adverted to a balance of a very different kind, without which 
the structure of the government must forever be faulty, and its prac- 
tical working inconsistent with its theory. I allude to that great 
balance which, in a society rightly constituted, is maintained between 
the government and the power out of the government. It is owing 



6 



NATURE AND TENDENCY 



[book I. 



to tlie great alterations which the social and political organization 
has undergone in very modern times, that this new fact in the history 
of political philosophy has escaped attention; at any rate, that a 
precise and definite place has not been assigned to it by those who 
have treated of government. The elevation of the lower orders, the 
formation of a great middle class, a thing but of yesterday, the crea- 
tion of a genuine public opinion, have wrought changes in the compo- 
sition of government corresponding with those in the structure of 
society. Because the legislative, executive, and judicial departments 
comprehend that share of authority which is organized, and which 
assumes a visible and determinate form, it has sometimes been sup- 
posed, that they contain the sum total of the political power of the 
community; but it is a matter for curious inquiry, to say the least, 
whether the outward force which sometimes resides in society, no 
matter whether we arbitrarily range it under the head of liberties and 
franchises, has not risen to the rank of a substantive power ; whether, 
in short, it has not become a new wheel in the machinery of the gov- 
ernment. Those departments do indeed exercise the administrative 
authority of the state ; and if they were left to themselves, and per- 
mitted to use power without a constant and active control on the part 
of the people, they would constitute the government, in the largest 
signification of the word. The extent to which that control exists is 
the single circumstance which at first determines the form of any 
particular government, and afterwards gives a direction to all its 
movements. If it is extremely feeble, the government will be a 
monarchy, or oligarchy, in the most unrestricted sense ; if it is mode- 
rate in its operation, the mixed form of limited monarchy, or a tem- 
pered aristocracy, will grow up ; and if very strong, it will give rise to 
free institutions, or a representative republic. If it could be conceived 
to be all powerful, it would not introduce the licentiousness of an 
unbridled democracy, but would rather supersede the necessity of all 
government. Wherever democracy in its extreme form exists, the 
control of society at large is very small, instead of being very great ; 
and therefore it is that such a government never has more than a 
temporary existence: it soon degenerates into an absolute government. 

As the power I have spoken of as residing out of the government, 
and in the society, represents for the most part a moral force, it may 
be supposed that I have assigned it too important a place in 



CHAP. I.] 



OF FREE INSTITUTIONS. 



7 



regarding it as a new wheel in the political machinery. But they 
who undertake to expound the ordinary theory of checks and balances, 
do not rely so much upon the physical force which is exerciseable by 
the departments of governments separately, as upon a set of moral 
causes which are recognizable as belonging to human nature, and 
which, as they are known to operate upon men as individuals, are 
with equal certainty expected to act upon them when they are made 
public rulers. And with the same propriety, in order to form a just 
notion of that species of balance I have referred to, as existing 
between the government and the power out of the government, it is 
not necessary to consider the people as constantly invested with 
an armed force. The general tendency, at the present day, is 
to substitute moral power in the place of physical force; not 
because it is more convenient, but because it is more efficacious. 
The profound tranquillity which has been enjoyed by the American 
government — a tranquillity so remarkable as to constitute a new fact 
in the history of society — will easily lead us to comprehend how a 
check exercised upon so large a scale may be of so great importance ; 
how it is that an invisible, but ever active power, which the term 
public opinion is of too narrow a meaning to give a competent idea 
of, may be sufficient to determine the form of the government, and 
after it is created, to superintend all its movements. The tendency 
of which I have spoken may, at some future day, be carried so far as 
to render it doubtful which is the government proper, the official 
agents who administer the public affairs, or the more complex 
machinery which presides over them, and retains each department in 
its proper sphere. 

Writers have divided governments into various classes. The most 
usual division is into monarchy, aristocracy, and democracy. This 
classification has been adopted, not merely in consequence of the 
different manner in which those governments are put together ; but 
proceeding upon a more comprehensive view, and considering each of 
them as founded in certain general and fundamental principles of 
human nature, those writers have treated the classification as a 
philosophical one of the highest importance. It is sometimes difficult 
to distinguish between an historical fact and a philosophical truth. 
That governments have existed under every variety of form, is an 
undoubted fact ; and that their existence may be accounted for from 



8 



NATURE AND TENDENCY 



[book I. 



well known causes, is equally certain. But what would be thought of 
the ethical philosopher, who ranged the virtues and vices under the 
same head, because they all have their root in certain principles of 
human nature. The error in both instances is precisely the same. 
There can be but one legitimate form of government, although there 
may be ever so many varieties, which force or accident has given 
birth to. 

If I ventured to make a classification, it would be into the natural 
and artificial forms, considering a representative republic as the only 
example of the first, and every other species as coming under the 
second division. By arranging a truth in the same list with a number 
of errors, it loses the distinct importance which belongs to it, and 
ceases to be regarded as a truth. The aim of the writer is necessarily 
imperfect and unsatisfactory. Even admitting that it were absolutely 
impracticable to introduce free institutions into every country, that 
does not prevent their being considered as the only legitimate form 
of government, no more than the impossibility, if it exists, of engrafting 
the arts and refinement, which are found among the English and 
American people, upon the wandering tribes of Africa or America, 
forbids us from treating civilization and savageism, not merely as 
different, but as two opposite states. The great end to be attained 
by holding up some principles and some institutions as just and v true, 
and others as the reverse, is to quicken and animate both individuals 
and states in their efforts to abjure the former, and to cultivate the 
last. The ancestors of the English and American people roamed 
like savages through the forests of Britain and Germany, and lived 
for centuries after under a stern and cruel despotism. The people, 
whom Caesar and Tacitus describe as clad in skins, and sacrificing 
human victims, seemed to have no fairer chance of being raised to the 
arts and civilization, which their descendants have attained, than the 
great majority of rude tribes now in existence. By regarding and 
habitually treating some actions and some institutions as right, and 
others as wrong, we make a considerable step towards rendering the 
former attainable, since it is of the very essence of right, that it is 
something which can be reduced to practice. The distinction then is 
no longer between the possible and the impossible, but between 
things practicable and things which are only difficult to be attained. 

Government when not founded upon the will of the people is 



CHAP. I.] 



OF FREE INSTITUTIONS. 



9 



necessarily an imperfect institution, because, failing in the commence- 
ment to represent their interests, it is almost sure eventually to be 
placed in direct opposition to them. Power, where it is condensed in 
a comparatively small class of the community, is obliged in self- 
defense to strengthen, in all possible ways, the influence and authority 
of that class ; and, to the same extent, to detract from the importance 
of all other orders of men. It is not a reasonable answer to this, to 
be told that abundant causes for the existence of such a mode of 
government may be found in the actual constitution of society in 
some countries, since there is no form of vice, however gross and 
detestable, which may not be accounted for and justified in the same 
way. We recognize the correctness of the historical deduction, but 
reject the general principle which is sought to be derived from it. 

The political institutions of a country may be viewed as fulfilling 
two distinct ends : the one to administer all public business, the other 
to bind society together, in other words to uphold civilization. But 
distinct as these two offices are, that constitution of government which 
is best fitted to promote the one, is also best calculated to advance the 
other. The wants and weakness of individuals give rise to the 
institution of government, and government, in turn, becomes the instru- 
ment of furthering the general improvement of society. The mere 
material interests which the public agents are appointed to superintend, 
the protection of property, the collection and disbursement of taxes, 
the guarding against foreign invasion, are not so absolutely connected 
with the moral and intellectual condition of the people, but what we 
may suppose the former to be competently managed, without any 
remarkable improvement in the latter. But it is certain, that the 
right constitution of government, joined to an upright and enlightened 
administration of what we denominate public affairs, does contribute 
wonderfully to impart freedom, activity, and intelligence to the general 
mind; and it is still more true, that the diffusion of intelligence, the 
spread of the arts and sciences, and the growth of a vigorous morality, 
do produce a marked influence upon the working of the political 
machine. The wider the basis on which government is made to stand — 
that is, the more thoroughly it represents the interests of all orders of 
men — the firmer the purpose, and the more unremitting the efforts, of 
individuals in improving their condition. The most effectual way then 
of raising the intellectual condition of the people is to connect their 



10 



NATURE AND TENDENCY 



[book I. 



interests so closely with their improvement, that they may be mutually 
dependent on each other; to throw knowledge in the way of every 
one, that it may become of daily use, and indispensable application in 
both public and private affairs ; so that men in the pursuit of their 
daily avocations, and government in the discharge of its official duties, 
may be compelled to run the same career of improvement. In this 
way, the maintenance of civilization, and the more direct aim which 
the institutions of government contemplate, are both answered at the 
same time. 



CHAP. II.] 



OF FREE INSTITUTIONS. 



11 



CHAPTER II. 

THE FOUNDATION OF GOVERNMENT, AND RIGHT OF THE MAJORITY 
TO RULE. 

The foundation of government is laid in the nature of man; and this 
fact, simple as it is, explains how civil institutions came to have a 
beginning; and why it is, that they have rightful authority to com- 
mand. It is sometimes supposed, that the most natural view would 
be, to consider individuals as possessing, originally, the right of self- 
government. But that cannot be natural which contradicts the con- 
stitution of human nature. The mistake arises from overlooking, or 
confounding, the double nature of man. He has attributes which are 
peculiar to him as an individual : on the other hand he has innumerable 
relations to the beings who surround him. If we could suppose the 
former to swallow up his whole being, then it would be correct to say, 
not only that self-government was originally the rule, but we should 
be driven to the conclusion, that it is now the rule, and must be so in 
all time to come. But as this is not the case, we are relieved from 
stating an unsound proposition, and from following it up by the most 
mischievous consequences. In truth the difficulty does not so much 
consist in conceiving how a collective body of men should be sub- 
jected to the government of society, as in imagining how such a body, 
constituting in its natural signification a society, should know no other 
rule than the government of individuals. To say that many thousands, 
or many millions, of men inhabit together the same region, is to imply 
that they have a multitude of relations to each other, and a system of 
interests which are common to all. No man can practice a duty, or 
exercise a right, without touching more or less upon the corresponding 
duties and rights of other men. 

But a*i this view admits that man has a double nature, it may be 
inquired, what higher and stronger reason there is why those attri- 
butes which make him the being of society should have the precedence ; 



12 



NATURE AND TENDENCY 



[book I. 



why, in fine, they should be entitled to rule over the individual, rather 
than that the individual should be permitted to have control over 
society. And laying aside the impracticability and self contradiction 
involved in this notion, the answer is plain, that in society the whole 
of our nature may be completely unfolded; while out of it hardly any 
part is even tolerably developed. The scheme of self government, as 
it erects the will of the individual into the supreme arbiter of his 
actions, necessarily implies the violation, by each, of the rights of all ; 
and would thus mutilate and destroy even the character of the indi- 
vidual, if it did not produce the utter extermination of the race. 

It is no wonder, therefore, that men in all ages have instinctively 
taken shelter under some sort of political institutions. The imper- 
fection of these institutions is a natural consequence of the very 
imperfect nature of man. This does not show that the scheme is 
wrong, but rather that its excellence is such that it cannot be carried 
thoroughly into practice. Imperfect as all human contrivances neces- 
sarily are, civil government has been found necessary, to the supply of 
our wants, the protection of our rights, and to the lifting our condition 
much above that of the brutes. 

Several theories have been proposed to account for the first formation 
of government. Some writers consider it as a divine institution; 
while others suppose that it originated in compact. This compact, 
however, has been described very differently. Mr. Locke treating it , 
as an agreement between the people and their rulers ; while Hobbes 
and Rousseau suppose the agreement was simply among the people 
themselves. 

There is this very important distinction between the exact and the 
moral sciences, that, in the former, a proposition is either altogether 
true, or false ; while in the last, there may be, and very frequently is, 
a mixture of both truth and error. This renders it exceedingly 
difficult to deal with moral propositions. Truth and error may be 
combined in every proportion ; and it is only where the balance inclines 
greatly to the one side or the other, that we can be sure we are right 
in adopting a given view. But there is this great compensation 
resulting from this defect, and the total dissimilarity between these 
two (Jepartmcnts of knowledge, that, in politics, when we embrace an 
error, we very often embrace a considerable portion of truth along 
with it. Thus, in those matters which vitally affect the interests and 



» 



CHAP. II.] 



OF FREE INSTITUTIONS. 



13 



happiness of mankind, the understanding is hardly ever condemned 
to the dominion of absolute and unqualified error. If one side of a 
proposition were altogether true, and the other altogether false, the 
adoption of the latter would give rise to something more than a 
theoretical error : it would produce consequences fatal to the peace 
and well being of society. The advantage which flows from this 
complete dissimilarity between the two leading departments of our 
knowledge is not seen in those abstract propositions which, whatever 
way they may be decided, affect practice very little. But it is 
strikingly displayed in that vast multitude of questions which are of 
daily occurrence, in administering the complicated concerns of an 
established and regular community. That is to say, the advantage 
arising from the principle increases in exact proportion to its application 
to the actual affairs of men. 

The two theories which I have referred to are an illustration of 
these views. The first, although exceedingly far fetched, has this 
much of verisimilitude, that the divine law constitutes the highest 
standard of right of which we can have any conception, and commu- 
nities as well as individuals, in all their schemes of action, are bound 
to be ; guided by it. But if we were to interrogate a philosopher or 
mechanician as to the cause of the movements of some complicated 
machine, and they were to refer it to the divine agency, we should 
derive no satisfaction from the explanation. In one sense the solution 
would be correct, since the Supreme Being is the author of every 
thing. But no addition would be made to our knowledge. So with 
regard to government; what we want to show, and what we are 
immediately concerned in showing, is the process, the human instru- 
mentality, which has given rise to the institution. If we were 
satisfied with the sweeping answer, curiosity and inquiry into the 
operation of those secondary laws which determine the form of 
particular governments would be damped, and we should make very 
little effort to improve an institution which was placed so entirely 
beyond our reach. Accordingly a doctrine which has the appearance 
of introducing the highest and justest rules into the conduct of 
political societies, is the one which has been attended with the most 
mischievous consequences. The advocates of the "jure divino right" 
have, at the same time, been the most idolatrous worshippers of the 
absolute power of governments ; while the plain and homely under- 



I 



14 



NATURE AND TENDENCY 



[book I. 



standings who have rejected it, have set themselves vigorously to 
work to extend the blessings of rational freedom, and to build up 
fortresses against the encroachments of power. 

The other theory, which places the foundation of government in 
compact, especially the view taken by Hobbes and Rousseau, 
approaches the truth much nearer. It is not absolutely incorrect 
even as an historical fact. Compact is the only legitimate basis upon 
which government can stand. And if any one will turn his attention 
to the formation of the American constitution, he will find, that the 
idea is carried into actual practice. With an example so conrplete 
and decisive, it would be a very lame answer to say, with an eminent 
writer, that if the American procedure was not followed at the first 
dawn of society, where government, like the infant in the cradle, was 
the creature of circumstances, therefore it is not entitled to notice. 
No machine, no production of art, or science, which was the fruit of 
man's exertions, at the present day, or a thousand years ago, could 
have any claim to originality, if this view were correct. All must be 
referred to an infantile society, simply because the men who have 
since lived descended directly from that society. 

There are two principles which preside over, and give a direction to, 
the action of men : reflection, and spontaneous feeling. And there is 
this fine provision in our nature, that where the attainment of an 
important end is desirable, which cannot be completely compassed 
without the aid of reflection, and yet the reflection is wanting, still 
there is a corresponding appetite, or sentiment, which enables us to 
feel our way. This, in a society which has made any considerable 
advances, is denominated common sense. In a rude one, it is called 
sagacity, or instinct. Thus in those communities which existed at a 
period anterior to written history, although we cannot conceive any 
thing like a formal agreement to have been entered into, we can 
very readily suppose, indeed we are compelled to suppose, that the 
minds of all the adult males, however untutored, spontaneously, and 
without any set purpose, conspired to that end. That those com- 
munities were societies, that is, collections of men in the aggregate, 
is abundantly sufficient to authorize the supposition. Certain it is, 
that in the rudest community, at the present day, that of the North 
American Indian, I discern far more evidences of the prevalence of a 



CHAP. II.] 



OF FREE INSTITUTIONS. 



15 



common will, as actuating the tribe, than of the independent and 
uncontrolled will of the individual. 

We talk of tacit or implied agreements, even in jurisprudence, and 
give the same force and authority to them which we do to express 
one3. And with great reason. Our notions of right and wrong, of 
just and unjust, are not determined by our positive agreements ; but the 
reverse. So much so, that the same force is sometimes given to that 
which ought to be, as if it were actually declared to be. For the 
same reason, although we might not be able to find any trace in a 
primitive community of an express compact, we should discover far 
more evidences of that form of society which results from one, than 
we should of the self government of individuals. In other words, the 
causes which lead men to society, and suggest the formation of political 
communities, for the management of the common interests, are of such 
controlling efficacy, that they act independently of any formal agree- 
ment. And if the contrivances of government are very imperfect at 
first, the same imperfection belongs to the whole sphere of individual 
action. Although in the most perfect form of society, that of a rep- 
resentative republic, men possess far more personal freedom than they 
do as members of a rude tribe, yet it would be very incorrect to say, 
that they did not enjoy individual liberty in this last state. 

Moreover, although societies of men may originally have been 
gathered by accident, and civil institutions planted fortuitously, the 
difficulty of conceiving such a thing as a social compact becomes less 
with every advance of civilization, and knowledge. No one supposes 
that the authority of government, even in Great Britain and France, 
stands upon the same uncertain foundation as in the reigns of Henry 
VII, and Louis XI. The idea that some sort of agreement lies at 
the foundation of government is so inseparable from the human mind, 
so constantly present in every form of society, that it survives all the 
mutations which human 'affairs undergo ; and at length causes this 
compact to be reduced to practice in all its details. Thus at the 
present moment a convention is assembled in the most populous and 
powerful of the American States,* for the purpose of forming a new 
constitution ; and that convention was elected by the votes of all the 
adult males in the state. 



* New York. 



16 



NATURE AND TENDENCY 



[book 1. 



Even in some of the European States, there is a settled conviction 
at the present day, not only among the reflecting, but with the great 
bulk of the population, that the promotion of the general weal is the 
only legitimate end of government. Obstacles may have to be 
encountered in realizing the idea-; but the idea is predominant. I 
can easily imagine that all the adults of a society may assemble for 
the purpose of forming a constitution, and yet this constitution be very 
imperfect. Still it would be literally true, that the form of govern- 
ment was the creature of compact. The imperfection might be the 
result of some defects inherent in human nature, or of circumstances 
which were uncontrollable. 

That all governments stand at least upon the footing of an implied 
contract, is of the greatest importance in politics. For then every 
advance in knowledge adds strength to the nation, and ultimately 
connects the implied into a solemn and formal agreement. And as 
our inquiries in political philosophy are not bounded by the actual, 
but are chiefly concerned with what ought to be, and what may be made 
to be the theory of the social compact should ever be held up as consti- 
tuting the firmest and the most rational foundation of civil institutions, 
and as that scheme which all people and lawgivers should make con- 
tinual efforts to approach, even if it should not always be attained. 

Great difficulty is sometimes expressed with regard to the rule of 
the majority; a rule which evidently lies at the foundation of free 
government. The difficulty is in truth no greater in the case of 
communities than of indivividuals, each of whom has conflicting 
and contradictory interests, opinions, and feelings, and yet knows that 
it is necessary to pursue some determinate plan, not merely to act 
successfully, but in order to act at all. And if one could conceive 
all the people of a state as composing parts of one mighty individual, 
this great being would be as much agitated and embarrassed by 
discordant views, as political communities are. He would be obliged 
to be governed by the majority of reasons in favor of or against a 
proposed line of conduct. Difficulties of this kind afford matter for 
curious and subtle speculation, but they rarely disturb the judgment, 
or interfere much with practice. To say that the rule of the 
majority is a rule of sheer necessity, and must prevail on that 
account, would be an imperfect explanation. But, if we say, that 
it resembles those great general laws, which bind together both the 



CHAP. II.] 



OF FREE INSTITUTIONS. 



17 



physical and the moral world, which are only rendered necessary 
because they produce beneficial results, we then shed light upon the 
reason as well as upon the mode of its operation. 

If, in laying the foundation of government, our design is to consult 
the common interests of the whole population, there is no alternative 
but the rule of the majority. If when the vote is taken, either 
among the citizens at large, or in the legislative body which represents 
them, the will of the greater number did not prevail, the minority 
would be at liberty to act without rule, not merely as regarded 
themselves, but in regard to the majority also, and in this way we 
should fall into the solecism of self government, where several distinct 
wills have power, not only to govern themselves in relation to their 
individual interests, but also to infringe in innumerable ways upon 
the general interests of the society. Even if we suppose that the 
majority should retire and form a separate government, a new 
minority would immediately appear, and this would be the case on 
every subdivision of the population, however minute it might be. 
The process, if continued, and it must be, once it is commenced, will 
unfold the preposterous and mischievous effects which would flow from 
departing from the simple and intelligible rule I have referred to. 
When the population, by repeated subdivisions, was morseled into 
the smallest fractions which would admit of a majority and minority, 
there would, in a country of twenty-one millions of people, be no less 
than seven millions of distinct governments. And, to be consistent, 
the division must be pursued still further, for in each of those seven 
millions of Lilliputian bodies politic, there is one individual to disagree 
to every thing. The effect would be to create ten millions and a half 
of such governments ; or, as it would be absurd when these assemblies 
were each reduced to two persons, not to accord to them equal 
authority, there would ultimately be precisely the same number of 
governments as individuals, that is, twenty-one millions. It is 
needless to add, that before the process had been repeated four or 
five times, society would be delivered over to wild uproar and 
confusion. 

The rule of the majority does not disappoint the design of 

government, which is to represent the interests of the whole 

community, and not merely those of a part. On the contrary, 

it is the only principle which is calculated to secure the happiness 
2 



18 



NATURE AND TENDENCY 



[book I. 



and prosperity of the whole. The various opinions and views 
which are current in society, evidently do not exist for the 
purpose of being carried literally into practice. Their great use 
consists in this, that they rouse inquiry, sharpen discussion, lead 
to extended and thorough examination; and thus, by eliciting the 
truth in the only way in which it can be ehcited, produce the greatest 
attainable advantage to the whole community. Men's opinions and 
feelings may be the most diverse imaginable, but their interests 
cannot be so. The giving free scope to the first, and then subjecting 
them to the will of the majority, is the only way to give consistency 
to the last, and of reducing to a system the complicated concerns of 
society. The keen and searching inquisition which, in a democratic 
republic, is made into all the schemes of public policy, constitutes a 
species of experiment upon their value and practicability, without 
which no permanent benefit could be secured to the whole, or to any 
]}art of society. Without this process, men would become mere 
automata in the pursuit of ends, to which instinct, not an enlightened 
reason, prompted them. So that the existence of a majority and 
minority, and yet the supremacy of the former, instead of marring the 
great design of civil institutions, constributes directly to advance it. 

It may be laid down as a proposition, admitting of few exceptions, 
that whenever a majority is competent to take care of its own interests, 
it will also be competent to take care of those of the minority. 
This results from two circumstances ; first, that all the prominent and 
substantial interests of the lesser will be included in those of the 
larger body ; and, secondly, that parties in a republic, the only form 
of government in which the terms majority and minority are legitimate 
expressions, do not occupy the fixed position which they have in 
monarchy and aristocracy; on the contrary, the individuals composing 
them are constantly shifting places, some passing from the major into 
the minor, and others sliding from the minor into the major party. 

The constant tendency in a republic is to the formation of a middle 
class, as the predominant body in the community. The consequence 
is, that so numerous a party as a majority cannot exist without being 
principally composed of that class. If the minority should be exclu- 
sively formed from it, a circumstance which cannot occur, the majority 
will at last draw the greatest proportion of its members from it. 
Now a middle class may be said fairly to represent the interests which 



CHAP. II.] 



OF FREE INSTITUTIONS. 



19 



are common to the whole society. The very rich and the very poor 
may he sure that their extravagant and unreasonable desires will not 
be consulted; but they may be equally certain that all their just 
claims will be regarded, and that, notwithstanding the occasional gusts 
which blow over society, their solid interests will be as carefully and 
effectually watched as, humanly speaking, can be the case. It can 
hardly be otherwise, as this great middle class was originally formed, 
and is constantly recruited, from the ranks of those who commenced 
life with little or no property, and as the ambition of every one is to move 
forward and to rise as fast as possible into the class of the rich. 
Moreover the laws which protect property in a democratic community 
are necessarily common to all who have property — to the man worth a 
million, as well as to one who possesses only two thousand dollars. 

It is then correct to say that, in a country where free institutions 
exist, all the great interests of the minority will be inclosed in those 
of the majority, that the public men who conduct the one party will, 
in no important respect, be different from those who conduct the 
other, and that the great variety of opinions which divide the 
community will not in the long run, and in the general upshot of human 
affairs, affect fundamentally or even sensibly the well being of the state. 

There is no other alternative than a government based upon 
the will of the majority, or some one of the artificial forms of gov- 
ernment; and hereditary monarchy and aristocracy do not properly 
represent either a majority or minority. I speak now of pure 
monarchy and aristocracy. For by a partial combination of free 
institutions with the hereditary principle, the will of the minority may 
be introduced into some part of the government, but never that of 
the majority. The term minority is merely a comparative one. It is 
so intellectually, and not merely verbally. A party in the minority is 
said to exist in reference to another party in the majority, because its 
opinions are formed in contradiction to those of the last. The 
minority may be said to spring from the majority. If in pure 
* monarchies, as Russia and Spain, or in pure aristocracies, such as 
Venice and Genoa once were, there is no way of giving expression to 
the opinions, and collecting the will of the majority, there cannot, 
properly speaking, be a minority. Limited or constitutional monarchies, 
as Great Britain and France, make some approach to the formation of 
these parties, because a distinct element has found its way into the 



20 



NATURE AND TENDENCY 



[book I. 



composition of the government. But monarchy and aristocracy, in 
their naked forms, are a species of self- existing government ; although 
. the notion of a social compact is never lost from the population, no 
more than the notions of right and wrong, the just and the unjust, 
are ever obliterated from the minds of the rudest people ; yet these 
governments are upheld, for the most part, by superstition and fear, 
and have power to perpetuate themselves without making any direct 
and declared appeal to any part of society. 

But it is a very important step towards the formation of regular 
government when the institutions, or any part of them, come to be 
founded even upon the will of a definite minority. The end at which 
government should aim begins then to be seen in a clearer light. 
The mind is gradually weaned from the notion of the "jure divino " 
right of rulers. As a considerable part of the population participates 
directly or indirectly in the administration of the government, the 
exercise of political privileges by this part constitutes a school of 
instruction ; which spreads its influence over the whole community ; so 
that if we compare the England and Scotland of the present day, with 
what they were in the reign of Elizabeth, when, as has been finely 
said, the intelligent were " like gaudy flowers upon a putrid marsh," 
we shall find that the well informed are now as one hundred to one at 
the former period. 

The moment that a considerable body of the people begin 
to exercise a visible authority in the state, the way is prepared 
for the ultimate rule of the majority. Men then begin, for the 
first time, to analyze their ideas on political subjects. As public 
men are now restrained by a force residing out of the government ; as 
the party which wields the popular branch of the legislature, although 
it is a minority out of doors, is yet obliged to defer to the opinions of 
every part of the community, intelligent men, indeed persons of 
very ordinary sagacity, naturally interrogate themselves, why an 
artificial distinction, such as the possession of landed property alone, 
should be permitted to stamp the character of citizenship upon the 
population; why, in fine, a straight line should be drawn through 
society, placing beyond the pale of the political franchises great 
numbers of men of substantial condition, and every way qualified to 
bear a part in the administration of public affairs. 

We may then make a more particular division of governments than 



CHAP. II.] 



OF FREE INSTITUTIONS. 



21 



that contained in the first chapter. We may divide them into 
three classes : 1st. One of existing governments, as absolute mon- 
archy and aristocracy. 2nd. Governments which rest upon the will of 
a definite minority of the population, of which limited or constitutional 
monarchies are an example ; and 3d. Governments which represent 
the will of the majority, of which the democratic republic is the only 
example. The two first are mere subdivisions of the more general 
classifications into the artificial forms of government. Nor is the 
classification a refined one. On the contrary it is entitled to the 
strictest attention. For the period when government succeeds in 
founding itself upon the will of a clear minority marks a most 
important era in the history of society. It denotes that a majority 
of the population, although politically passive, are yet intellectually 
active, and there is yet this further consequence flowing from it, that 
if the minority contain a large proportion of the substantial people, 
their interests, opinions, and feelings will more and more resemble 
those which are common to the great bulk of the community. So 
that if government is not administered in the best possible manner, it 
will be infinitely better administered than in pure monarchy, or 
aristocracy. I observe that in Great Britain and France every year 
adds to the force of public opinion ; that the governing power no 
longer supposes that it is absolved from paying attention to the 
sentiments and wishes of even the most inconsiderable class ; but 
that, on the contrary, it makes great efforts to accommodate the 
legislation to the interests of every part of the community. One of 
the most remarkable circumstances attending the rule of the majority 
is, that it is no sooner invested with power, than it sets about imposing 
limitations to the exercise of its own authority. This is an invariable 
consequence wherever a real majority, as in the United States, and 
not merely a constructive majority, as in France during the revolution, 
have the supremacy ; and it is evident that it affords the most unequiv- 
ocal test imaginable of the right and the fitness of the majority to 
rule. There is nothing surprising in this disposition on the part of 
the popular power. The same fact is observable in the conduct of 
individuals. There are few persons, given to the slightest reflection, 
who do not, on entering upon life, form for themselves a set of rules 
intended to act as restraints upon their own conduct, and to produce 
order and arrangement in the management of their private affairs. 



■22 



NATURE AND TENDENCY 



[book i. 



The merchant, the shop keeper, the mechanic, all act in this way, 
and with fully as much judgment and discretion as men of the highest 
education. That these same persons when collected into a body 
should be suddenly bereft of a faculty of so much advantage in the 
pursuit of all their interests, would be difficult to explain upon any 
principles which belong to human nature. Self-interest, which prompts 
to its exercise in the first instance, will elicit it in the other also. 
The change which society undergoes when it has passed from a rude 
to a highly civilized state, does not imply that self interest is extin- 
guished, but that it has become more enlightened, takes in a great 
number of objects of gratification, and thus tends constantly to bring 
about an agreement between the general interests and the interests of 
individuals. 

It would doubtless be a great improvement upon all ordinary 
systems of government, and would conduce materially to a just and 
regular administration of public affairs, if we could introduce among 
communities some principle which resembled the faculty of reflection 
in individuals. We should then succeed in imposing a control upon 
the passions, and remove the greatest obstacle in the way of free 
government. But wherever we have advanced to that point where 
the majority possess the supremacy, and yet consent to impose 
limitations upon their own authority, we may be sure that we have 
succeeded, to a very great extent, in introducing that principle into 
the institutions. These limitations, or checks, may be divided into 
three classes: 1st. Where a restraint is imposed upon both the 
majority and minority. 2nd. Where peculiar advantages are accorded 
to the minority; and, 3d. Where the authority of the community is 
so distributed as to give rise to a compound system of majorities and 
minorities. 

A written constitution is an example of the first class. It is 
an instrument which undertakes to form, upon reflection, a body 
of fundamental rules for the government of the community, which 
shall be a convenient shelter against the temporary gusts of party 
feeling. Precautions are thus taken, on laying the foundation of the 
system, for securing the interests of every order of men, without 
reference to the fact whether they shall afterwards fall into the party of 
the majority, or of the minority. Every article of such an instrument is 
an authoritative declaration in behalf of general liberty. Opinions 



CHAP. II.] 



OF FREE INSTITUTIONS. 



23 



may vary, circumstances may change, rendering it desirable for the 
moment to depart from some of these fundamental rules ; but this 
great covenant stares them in the face, and, although it is plain, that 
it is physically possible to overleap the bounds which it has set, yet 
such is the power which the rule of right exercises upon the minds of 
men, when it is recognized as a general principle of action, that there 
is hardly any faction but what recoils from the attempt, or if it is 
ventured upon, is compelled to retrace its steps. And what is very 
remarkable, the difficulty increases in proportion as the electoral fran- 
chise is enlarged, and the number of active citizens augmented; which 
is the reverse of what would at first be supposed to be the case. It is 
more difficult to maintain a good understanding among the members of a 
party which is very numerous, than of one which is small. Admitting 
that a majority of the majority should be bent upon infringing some 
parts of the constitution, in order to attain a desired end, there are 
always a numerous body of individuals, of calm judgment, and solid 
reflection, who, although every way disposed to make sacrifices for the 
sake of keeping the party together, will never consent to sacrifice to 
party what belongs to their country. These individuals stand aloof, 
or go over to the minority, which, becoming the majority, gains the 
ascendancy, and restores the balance of the constitution. 

During the last twenty-five years, we have witnessed repeated 
attempts, by the legislatures of several of the American states, to 
violate their respective constitutions, and sometimes even that of the 
federal government. In every instance the attempt has been abortive. 
So many of the people have abandoned the party in power, that it 
became utterly powerless in the accomplishment of its plans, and, 
after a time, the whole community returned with renewed satisfaction 
to the wise and salutary maxims which had been handed down to 
them by their fathers. 

The constitution of Ohio was framed in 1802, when the population 
was a handful. It has now become a populous and powerful com- 
munity ; so that it has outgrown its constitution, as the man outgrows 
the clothes which he wore when a boy. Great inconvenience has been 
experienced in consequence of some of the provisions of that consti- 
tution ; yet the people have submitted patiently to them, because, 
although a majority has constantly during the last twenty years been 



24 



NATURE AND TENDENCY 



[book I. 



in favor of an alteration, yet the time has not arrived when the 
constitutional majority of two-thirds could be obtained. 

An example of the second class of checks, is when the minority have 
a proportional representation in the legislative body. The constitution 
of the executive and judiciary is such as to preclude the adoption of 
this plan, but the legislature is composed of so many members as very 
readily to admit of it. As representation takes the place of an 
actual deliberation by the people in person, when all parties would 
have an opportunity to be heard, there is every reason why the same 
right should be recognized in elective government. But it is obvious 
the moment the door is opened to a representation of the minority in 
the legislative hall, that a most important restraint is imposed upon 
the majority. Some persons cannot conceive of the existence of a 
check, unless it has a coercive force. But it is often of more efficacy, in 
consequence of being deprived of this quality. The minority, in its 
present position, are placed more upon their good behavior, exercise 
their wits more in finding out solid and substantial reasons for the oppo- 
sition which they make ; and from the single circumstance that they 
do not aspire to command, but only to persuade, are enabled to exercise 
very great influence at those critical periods when extreme measures 
are about to be pursued, and when the minds of men have become 
greatly exasperated. A seat in the legislature is the most commanding 
position which can be occupied in the government. There is no 
calculating to what extent public abuses are prevented, and the laws 
modified by the agency of a minority, although it may be impossible 
to lay one's finger upon the precise periods when either was done. 
The instances are nevertheless without number. 

The division of the legislature into two chambers, is another instance 
of checks. Where two chambers exist, and the members hold their 
seats for different terms, the more popular branch may alone represent 
the opinions of a majority of the people at any given period, while the 
more permanent one will reflect opinions which once had the ascen- 
dancy, but which are perhaps passing away. Whether the arrange- 
ment is an advantageous one — whether it is wise to permit this conflict 
of living with dead opinions, is a problem not easy of solution. Nor 
i3 it necessary in this place to enter into an examination of it. But 
if the system is of doubtful utility, it more strikingly displays the 



CHAP. II.] 



OF FREE INSTITUTIONS. 



25 



disposition of the majority, on laying the foundation of government, to 
concede great, and decisive advantages to the minority. All the 
American states, except Vermont,* have adopted the plan. At an 
early period the people of Pennsylvania established only one chamber, 
but very soon after added another. 

In those countries where one chamber is composed of an hereditary 
aristocracy, as in Great Britain, or of an aristocracy for life, as in 
France, Holland, and Belgium, the institution is of an entirely different 
character. The creation of an upper house is not an advantage con- 
ceded to the minority of the society; but is a personal privilege 
conferred upon a very small body. No matter what opinions either 
the majority or minority may have, there stands this immoveable 
bulwark, until the period has arrived when public sentiment has 
acquired so much power, as to control the conduct of the highest 
authority in the state. 

In the federal government of the United States, the advantage 
afforded to the minority is permanent. And this has arisen from the 
fact that the Union was formed by a convention of the states, and not 
by the people of America, as constituting one aggregate community. 
The relative extent and population of these states are very different. 
But as they all held an independent rank prior to the formation of 
the constitution, it was impossible to do otherwise than to give all an 
equal representation in at least one branch of the legislature. This 
renders the structure of the government more complicated than that 
of the states. Neither a majority nor a minority of the general 
population are represented in the senate. The majority of the votes 
belong to a minority of the local population. But in that great con- 
federacy of nations, over which international law now presides with 
nearly as much force as municipal law does over single states, large 
and small communities stand precisely upon the same footing, and are 
entitled to equal consideration. Moreover the difficulty is almost 
entirely obviated in America by the uncommonly skillful construction 
of the two systems of government, The federal and state interests 
are completely separated from each other, by which the most important 
part of the business of government is left to the exclusive manage- 
ment of the states. The veto of the executive may also operate 



* In Vermont a second chamber has recently been created. 



26 NATURE AND TENDENCY [book i. 

sometimes as a check in favor of the minority. This power may he 
xeercised in favor of a majority in the nation, against a majority 
in the legislature ; or in favor of a minority in the nation against a 
majority in the legislature; or, lastly, in favor of a minority in the 
legislature against a majority in the same body; without the means 
of knowing, at the precise time it is interposed, what is the actual 
state of public opinion among the people. Its operation is very 
different at different times, but the immediate effect is always to defeat 
the will of a majority in the legislature. The institution presents a 
problem of as difficult solution as the one just referred to. The 
difficulty consists in balancing the probabilities for a long series of 
years, in favor of the rectitude of the opinions of the executive, 
against the corresponding probabilities in favor of a majority of the 
legislature. 

The third class of checks, depending upon a more general distribu- 
tion of the power of the community, is where a system of primary 
and secondary governments is established: one intended to preside 
over those interests which are common to all the parts; the other to 
administer those which are exclusively local. The perfect form of 
confederate government affords a full illustration of the plan, although 
it is by no means necessary that the community should be a confede- 
racy, in order to give rise to it. Every state of great extent would 
find it its interest to create a set of local jurisdictions to manage 
the local interests, which are necessarily beyond the reach of the 
central government. The scheme does not belong exclusively to a 
confederacy of states. But its utility is first suggested by the prac- 
tice under that form of government. The. local jurisdictions of 
departments and " arrondissements " in France, and the separate legis- 
latures of Sweden and Norway, are examples, though imperfect ones, 
of the plan. The United States is the only country in which it has 
been carried to its full extent. And as the restriction upon the 
electoral franchise is so very slight, it is easy to determine which 
party does in fact constitute the majority of the people. The creation 
of a national and state governments has produced a double system of 
majorities and minorities. For instance, the minority in the national 
legislature may be a majority in several of the state legislatures, and 
vice versa. The interests to be administered are not the same in the 



CHAP II.] 



OF FREE INSTITUTIONS. 



27 



two. They are therefore kept distinct. Under one homogeneous 
government, the party in the majority might rule over both. 

But in the United States the scheme is not confined to the federal 
government, but is pursued in the separate governments of the states, 
each of which has created a system of local jurisdictions within 
itself, to manage the local interests. The county, and township 
jurisdictions, each with its board of officers attached, are examples. 

It is unnecessary to refer to any further instances of the various 
checks and limitations which the majority constantly impose upon the 
exercise of their own authority. What has been said contributes 
abundantly to fortify the position, that wherever a majority is capable 
of taking care of its own interests, it will for that very reason be 
capable of presiding over the interests of the minority. In the new 
states which are constantly springing into existence in America, and 
whose constitutions are based upon the principle of universal suffrage, 
we find that every precaution is taken in the outset, to impose limita- 
tions upon the power of the majority, wherever these are believed to 
be subservient to the general weal 



28 



NATURE AND TENDENCY 



[book I. 



CHAPTER III. 

CHARACTER AND OPERATION OF ELECTIVE GOVERNMENTS. 

If the extreme rigor of the rule, that the majority is entitled to 
govern, is thus tempered in practice, by the intervention of so many 
and such powerful restraints, imposed by the majority, it may be 
affirmed that the country which denotes such a condition of society, 
or any thing which makes a near approach to it, is rife for the estab- 
lishment of free institutions. The right of the majority to govern, 
depends simply upon its capacity for self government. 

But the inquisitive observer, fearful of the fate of free institutions 
in proportion to the interest he takes in them, may inquire whether 
the unbounded freedom of thought and action, which they engender, is 
not absolutely incompatible with the firm authority which government 
should possess ; and whether they must not eventually perish, from 
the unceasing action of the very element in which they are destined 
to live. But it is that very freedom of thought and action, unbounded 
as it may be supposed to be, which gives being to public opinion ; and 
without the influence of public opinion, society would be a mere 
waste. Although Europeans look with so much mistrust upon the 
American commonwealth; yet it is remarkable that every thing which 
is valuable in their own societies, has been brought about by the com- 
munication of a greater degree of liberty to the people. So far from 
weakening the bond which holds society together, the effect has been 
to render it stronger. In Great Britain, and France, in Prussia, and 
Belgium, it is in exact proportion to the power which public opinion 
has acquired, that the administration of government has become mild 
and enlightened, and that a character of firmness and durability has 
been imparted to the institutions. It was at one time believed, that 
public tranquility could not be even tolerably preserved, without the 



CHAP. III.] 



OF FREE INSTITUTIONS. 



29 



constant presence of a military force. The people were terrified into 
submission to the government, rather than won over to obedience to 
the laws. 

It may be laid down as a maxim in politics, that the employment 
of physical force is rendered necessary, by the absence, or deficiency, 
of moral force. If there is a happy distribution of the last through 
society, there will be less occasion to resort to the former. If, on the 
other hand, the distribution is very unequal, the discontent will be 
great because the amount of liberty is small, and hence as a natural 
consequence, inordinate authority will be condensed in the hands of 
the government. Now, it is public opinion, above all other agents, 
which contributes to produce a just equalization of the moral power 
of the community ; and it is the freedom of thought and action which 
gives birth to public opinion. It was on the first dawn of a public 
opinion in England, or rather I should say in Europe, that Pym, and 
Selden, Coke, and Hampden, were roused to make such bold and 
intrepid exertions in behalf of popular freedom. Man feels strong 
when he is conscious that he is surrounded by a power which repre- 
sents not his feelings merely, but the feelings of mankind. Abundant 
compensation is thus made for that state of feebleness and isolation in 
which individuals, who cherish noble ideas, would otherwise find them- 
selves placed in the midst of society. 

It is not surprising that the freedom of the press has met with so 
much resistance in monarchical and aristocratical governments. The 
tribunal of public opinion, when fairly erected, is so formidable an 
adversary to the exercise of every species of arbitrary authority, that 
it invariably succeeds first in subduing the tone and temper of the 
public administration, and ultimately the form of the political institu- 
tions. Chateaubriand declared to the ministers of Louis Philippe, 
"on the day you decree the liberty of the press, you die." And if 
this audacious speech was not verified, it is plainly because the 
elements of public opinion are now every where visible throughout 
France. 

In a country where a fixed aristocracy exists, some men are neces- 
sarily endowed with a much larger share of influence than others. A 
body of nobility and gentry have sometimes possessed more weight 
than all the rest of the community. This unequal distribution of 
power is a great hindrance to the formation of a public opinion which 



30 



NATURE AND TENDENCY 



[book I. 



shall rule over all; but it is highly favorable to the creation of a 
particular or sectarian opinion within the class itself. When, however, 
the dispersion of knowledge and property has elevated that multitude 
of men who occupied the inferior ranks of society, public opinion rises 
up and threatens to beat down the narrow and exclusive opinions 
which before existed. The array of physical force, which was before 
necessary, sometimes to quell insubordination among the masses, 
sometimes to curb the turbulence of the nobles, and at others to 
restrain the usurpations of the prince, gradually disappears. All 
orders of men begin to find their true relative position in society, and 
public order and tranquility are preserved with remarkable regularity. 
From which it is very easy to understand why it is, that a just distri- 
bution of the moral power of the community supersedes, to so great 
an extent, the use of mere physical force. The old ranks may 
continue to stand, but they will stand like broken and defaced columns 
, amid the new structure which is reared around them. 

One striking property of free institutions is, that they present fewer 
subjects of contention between the government and the people, than 
any other scheme of civil polity. I have already pointed to two 
characteristic features of a democratic republic : a written constitution, 
and the establishment of local jurisdictions, contrivances of great 
wisdom and utility. For by the first, the principal controversies which 
have shaken other communities are struck out of being ; and by the 
last, a very large proportion of what may be described as the secondary 
interests of society are withdrawn from the arena of national conten- 
tion, and are deposited with domestic governments, by which they 
will be managed in the most skillful and unobtrusive manner possible. 
Under such a system men are able to find very few subjects to 
quarrel about; and even if government has less ability to resist 
encroachments, there is also infinitely less temptation and opportunity 
to assail its rightful authority. 

Not only however are the most dangerous controversies diminished ; 
those which remain assume an entirely different character. They are 
unfit to be decided by force. The prerogatives of an hereditary 
monarch are so incapable of exact limitation, that he may often 
attempt to push them to the uttermost ; or the strictly legitimate 
exercise of them may be productive of infinite mischief to society. 
The single power of declaring war may occasion the imposition of 



chap, in.] OF FREE INSTITUTIONS. 31 



taxes insupportably burthensome to the community. The legislature 
may be a close body, in no way entitled to the appellatign of repre- 
sentative of the people, and much more disposed to favor the projects 
of the prince, than to consult the solid welfare of the state. The 
questions which grow out of such a condition of things immediately 
suggest the idea of an appeal to force. But whether the legislature 
shall make internal improvements, charter banks, or encourage manu- 
factures, however interesting and exciting they may be, are still 
questions which belong to a totally different sphere. They could not 
ever grow up in any other society than one which had been trained 
to the arts of peace, and where men had been habitually given to 
reflection. Such questions recommend themselves to the understanding 
alone, and it will be an exceedingly rare occurrence if one drop of 
blood is ever shed in deciding them. 

This explains why it is that in modern societies men are so much 
addicted to reflection. It is not because they are by nature superior 
to the men of former times. It is simply in consequence of the 
independent condition to which they have risen. The cares and 
anxieties of life are multiplied even more than its enjoyments. A 
vastly greater proportion of the people than at any former period are 
engaged in industrial pursuits. These demand the constant exercise 
of judgment, prudence, and discretion, and being accustomed to 
calculate the consequences of their actions on a small scale, they are 
enabled to transfer the same habit to a larger theater of action, and 
thus to render the exercise of their political principles not merely 
harmless, but essentially beneficial to the community. At one time 
no one could practice a trade in a city unless he belonged to the guild : 
and hardly any one out of the ranks of the nobility and clergy was 
the proprietor of land. There was no school for reflection among the 
people, because there was no opportunity for its application, either in 
the walks of private or of public life. It follows that in a democratic 
republic, where there is a more equal distribution of property, and 
where industry, whether in town or country, is unfettered, the mass 
of the population must be more distinguished for reflection than any 
where else. Thus, in that form of government where this invaluable 
quality is most in demand it is freely supplied, and where it is least 
wanted it is sparingly produced. 

If it were possible so to construct government as invariably to 



-32 



NATURE AND TENDENCY 



[book I. 



connect the interests of individuals witli those of the public, we should 
form a system which would bid fair to endure forever. I speak now 
of the interests of individuals, as seen and understood by themselves ; 
for the real interests of private persons never can be inconsistent with 
the general weal. Now although it is impossible to realize this idea, 
in consequence of the great diversity in the faculties and propensities 
of different men, and the different manner in which these are combined 
in individuals; yet experience demonstrates that it is easy to carry 
it a great deal further than was once believed practicable. Philoso- 
phers who have sketched ideal plans of a republic, have failed, not 
so much because they have placed too high an estimate on human 
nature, as because they have not allowed room for the operation of 
some very homely qualities, out of which spring what we term patriot- 
ism and public spirit. If what makes the artificial forms of govern- 
ment so dear to the select few who participate in their administration, 
is that their whole interests are wrapped up in the preservation of 
them, there seems to be no reason why we may not imitate the 
scheme on a still larger scale, and cause the great body of the people 
to be deeply interested in upholding free institutions. There is no 
necessity for imagining the existence of any higher qualities than 
before, in order to produce this effect. For admitting that we cannot 
render the motives of human conduct more general in the one case 
than in the other, yet by giving to them an infinitely wider scope in 
the last instance, we found ourselves upon the same principle of 
interest, and thus communicate both more freedom, and more pros- 
perity, to a greater number of people. If the superstition inspired 
by the artificial form of government is a prodigious support to their 
authority; there is a very similar but a still stronger feeling at work 
among the people who live under free government. They are alive to 
every attempt to impair it, not merely because they believe their 
institutions to be the best, but because they are the workmanship of 
their own hands. 

In whatever light we may cast the subject, it seems evident that 
representative government is the only one which is fitted to fulfill all 
the great ends for which society was established. Not only is the 
general condition of the population greatly elevated, so as to render 
the care of its interests the chief aim of government, but a multitude 
of persons are actually employed in the public administration. Public 



CHAP. III.] 



OF FREE INSTITUTIONS. 



38 



magistrates of various kinds, periodically rising from the people and 
returning to the people, are dispersed over the whole country. The 
sentinels of liberty are so thickly planted as to keep perpetual watch, 
and the complicated and wide spread machinery of the government, 
makes it an affair of great difficulty to break it up, or to take it to 
pieces. In the artificial governments, the handful of men who rule 
over public affairs are staked to the preservation of power; in a 
republic, the great body of the people are heartily interested in the 
maintenance of freedom. 

In the event of any great convulsion, occasioned by foreign war, or 
intestine commotion, the advantage is greatly on the side of popular 
government. Free institutions so thoroughly penetrate with their 
influence every part of the community, that although it may be 
possible to shake the government, the question will still arise, can 
you shake the society. In war, there is a distinction between con- 
quering the government, and conquering the people; and a similar 
distinction is applicable in this instance. In a monarchy, or aristocracy, 
the overthrow of the government by foreign or civil war, has some- 
times nearly obliterated the traces of civilization. In a republic, 
where the great body of the people are fairly brought within the pale 
of civilization, such a disaster can never occur. Such a people feel 
deeper concern for their institutions, than the people of other countries, 
and yet they are not so completely dependent upon every vicissitude 
which may befall the government. 

There is another advantage which free institutions possess. They 
lay the foundation for a great body of experience. It is of the highest 
importance that societies, as well as individuals, should be placed in a 
situation which enables them to make actual experiment of the utility 
of those diversified laws which the wants of the community render 
necessary. In hereditary government, the machinery is so delicate, 
that this can seldom be hazarded without endangering the whole 
fabric. I do not now speak of that bastard sort of experiment — the 
fruit of vain and fanciful theories — but of that which founds itself 
upon an intimate acquaintance with every thing which appertains to 
the substantial interests of the community. As experience in its 
most comprehensive signification, including observation, is the founda- 
tion of our knowledge; as all science, in short, is nothing but the 
condensation of human experience, there seems every reason why we 
3 



34 



NATURE AND TENDENCY 



[book !• 



should be able to avail ourselves of it, in what concerns the positive 
interests of society, as well as in what relates to matters of more 
curious inquiry. The most gifted understanding, when relying upon 
its own resources merely, will forever be too imperfect to grasp all the 
conditions which affect the determination of any given enactment. 
As the whole ground work of the institution is different in a republic, 
from what it is in any other form of government, the quantity of 
experience which is supplied is correspondingly large. For we then 
have a people in the genuine acceptation of the term. The laws, and 
the whole course of the public administration, take an entirely new 
direction. War, negotiation, and finance no longer absorb the whole 
attention of statesmen. Public affairs have then a different meaning 
affixed to them. The legislature embraces a vast scope of practical 
interests which, being more level to the capacities of all, call into 
requisition a great amount of popular talent ; and as they who make 
the laws are the very persons who will derive advantage, or suffer 
inconvenience, from them, a most instructive school of experience is 
established, in which all are compelled to learn something. 

I observe that more laws have been passed by the British parliament 
in the last forty years, than in the three preceding centuries ; that is, 
the laws have multiplied in proportion as the real business transactions 
of society have increased; and these have increased because so large 
an amount of the population have been raised to a higher condition 
than formerly. A similar change is very perceptible in France. But 
on the whole, I should say, that the democratic element, although it 
appears in bolder relief in France than in Great Britain, was not 
making so great and so sure advances in the former as in the latter 
country. 

One of the most remarkable features of American society, is the 
facility with which changes are made in the fundamental laws, where - 
ever experience has shown that there is an infirmity in some part of 
the system. A convention in any one of the American states, assem- 
bled for the purpose of making alterations in its constitution, creates 
no noise, or confusion. All the deliberations are conducted to a close 
with the same regularity as the proceedings of an ordinary legislative 
body. At an early period there was a remarkable sensitiveness on 
this subject. Constitutions, it was said by those who had not entirely 
escaped from the European forms of thought, were sacred things ; and 



CHAP. III.] 



OF FREE INSTITUTIONS. 



35 



once ordained should never again be touched. As if every institution 
did not acquire sacredness by being perfected and better adapted to 
its original design. 

A great revolution was effected in the structure of society, when 
the inferior classes lost their dependance upon the higher; when the 
relations of patron, and client, of lord, and vassal, ceased. A new 
relation immediately sprung up. Instead of the dependence being 
all on one side, the two orders became mutually dependent on each 
other. Society began to assume the character of a great partnership 
among the members, instead of that of a series of ascending links in 
a chain, one end of which was fastened to the throne. From that 
period, the people have been constantly gaining in intelligence and 
power : so that it is doubtful whether, in more than one European 
state, if the laws of progeniture and entail had been abolished a 
century ago, society would not be completely prepared for the intro- 
duction of the elective principles into every department of the 
government. There is every reason to believe that those laws will 
sooner or later give way. The force of habit among a whole people, 
is as strong as it is in individuals. It frequently survives the exis- 
tence of the causes which originally induced it, but it cannot survive 
them forever, when there are so many counter agents unceasingly in 
operation. 

Two apparently opposite effects are produced by that alteration in 
the structure of society which I have described. Governments are 
rendered stronger, and yet, both the absolute and the relative power 
of the people is augmented. As it becomes more and more necessary 
to take counsel of public opinion, with regard to every important 
measure, it might be supposed that government had lost strength. 
But inasmuch as a man, mutilated in one part, is not able to exert so 
much general power as a man who is perfect in all his members, so a 
government which relies upon the entire strength of society, must 
necessarily be more efficient, in proportion as that strength is devel- 
oped. In all the European governments, in which a legislative body 
exists, however inadequately it may represent popular opinions, there 
is notwithstanding an increasing anxiety to consult popular interests. 
Any important change in language, denotes a corresponding change 
in the ideas of the age. And the comparative disuse, in some parts 
of Europe, of the term subjects, and the substitution of the term 



36 



NATURE AND TENDENCY 



[book I. 



citizens, or people, is an unequivocal indication that new things have 
come to pass. Mr. Fox was the first statesman who accustomed the 
English ear to this mode of speech. He knew well, that the way to 
fasten an impression upon the mind, was to give it a palpable form — 
to incorporate it into the dialect of the country. The crowned heads 
of Europe do not venture to sport with the lives and property of the 
people as formerly, simply because the people have acquired a weight 
in the political system which enables them to exercise a powerful, 
though it may be an indirect, control over all public affairs. 

There are two properties inseparable from every well constituted 
government : the one a capacity to receive impressions from public 
opinion, the other a power of reacting upon society. There is no 
contradiction between the two things. On the contrary, the last is 
the natural consequence of the first. The use of public opinion is to 
inspire government with confidence, fortitude, and resolution, when- 
ever public affairs are well conducted; and to impress it with shame, 
distrust, and fear, whenever the contrary is the case. Two forces act 
in different directions, and yet both tend to the same result: the 
causing public men to exercise a more legitimate, and therefore a 
more effective, influence than they could otherwise do. The more 
government reposes upon public opinion, the more susceptible it is of 
being acted upon ; and yet, the greater is the facility it acquires of 
acting upon the community in difficult emergencies. I do not now 
suppose the case of general resistance to its authority; for the struc- 
ture of representative government is such as to render it a guarantee 
against such a contingency. But I speak of those partial insurrections 
against the laws, originating in local discontents, and to which the 
best regulated society will be occasionally subject. European writers 
on public law, with nearly one accord, admit the right of resistance 
on the part of the people, whenever government has clearly and 
flagrantly transcended its authority; and very properly so, for where 
the institutions contain no provision for displacing men who have bid 
defiance to all law, and who have evinced a settled determination to 
render the public interests subordinate to their schemes of self aggran- 
dizement, there is no other alternative but that of resistance. It 
constitutes an excepted case ; but a case consecrated by necessity, by 
right, by the eternal laws of God and man. The deposition of 
Napoleon, and Charles X, in France; of Charles I, and James H, 



CHAP. III.] 



OF FREE INSTITUTIONS. 



37 



in England, stand upon this clear and undisputed principle. That of 
Louis XVI may admit of some hesitation, and yet it is exceedingly 
doubtful whether the scheme of constitutional or limited monarchy 
could have been achieved without it. 

But in elective government, the case cannot occur. The powers of 
all public functionaries are not only very limited, but they are them- 
selves quietly removed before they have had an opportunity to commit 
any great mischief. And I cannot help thinking, that the reason why 
America has been less subject to even partial insurrections than any 
other country, is owing to this circumstance. The power which is 
reposed with the government, is conferred by all the parts equally; 
and the notion that the will of the majority is entitled to command, 
is sp indelibly impressed upon both people and rulers, that wherever 
a conflict occurs between the laws which that majority have ordained, 
and any particular section of the population, a degree of confidence, 
energy, and alacrity is infused into all public men, which enables them 
to triumph speedily over all opposition, and that without depending 
in any degree upon the instrumentality of a standing army. 

A democratic republic will then possess the two properties I have 
mentioned, in greater perfection than any other form of government. 
It will possess a capacity of receiving impressions from without, 
because it is the creature of the public will; it will have the power 
of reacting upon society, not only because it will be powerfully sup- 
ported by public opinion, but because the disturbances which will 
occur can never in the nature of things be more than local. Twenty 
times more blood was shed in Paris, on the memorable three days 
which closed the reign of Charles X, than in all the insurrections 
which have occurred in the United States since the foundation of the 
government. 

It is' time now to direct the attention of the reader to a very material 
distinction, already hinted at, between a representative republic and 
the artificial forms of government. In the first the political authority of 
the community is divided into three classes : the powers which are 
exercised by the government, those exercised by the people, and those 
reserved to the people. In pure monarchy, and aristocracy, there is 
but one class. The whole power is centered in the government. In 
the United States, it is common to make two classes only; the second 
is left out. All the active power of the community is supposed to be 



38 



NATURE AND TENDENCY 



[book f. 



conferred upon the government, and all its latent power to be lodged 
with the people ; liable to be roused to activity whenever a convention 
is assembled for the purpose of forming a new constitution. But this 
is a very imperfect view of the structure of the American government. 
The powers actually exercised by the people are numerous, and of 
great importance. I have no reference now to the distribution of 
authority between the federal and state governments. That does in 
reality give rise to a fourth class, which it is not now necessary to 
notice. 

First, if we could consider the various persons who are chosen to 
perform the duties of the great number of offices which exist in repre- 
sentative government, as naked instruments, mere eonduit pipes, to 
convey the opinions, and to give an audible expression to the interests, 
of the people, the truth of the observation would be clear. The con- 
duct of the representative would then be invariably determined by the 
will of his constituents. It might even be doubtful, whether the latter 
did not excercise all political power not reserved. If, on the other 
hand, there is a considerable approach to that scheme, or arrange- 
ment, the truth of the proposition will be still more manifest. The 
active power of the community will be partitioned between the gov- 
ernment and the people. The arm is the mere servant of the will. 
If an individual had no immediate power in moving it, but was 
able to exercise an intermediate control, which might be relied upon 
as certain, in the great majority of instances, it would still be 
correct to say, that he exercised an important agency in determining 
its movements. 

The physician who is employed to cure disease, or the lawyer who 
is engaged to prosecute a suit, are the agents in either case of those 
who apply to them. Yet the connection is not as strict, as between 
the elector and the representative : because in the case of the physi- 
cian, and lawyer, the skill demanded of them depends upon a body 
of scientific knowledge, an acquaintance with which is impossible for 
those who have not made it a special study. More strictly is he 
denominated an agent, who is selected to transact the private business 
of an individual. And, although this trust will require judgment, 
sagacity, and industry; that is, the exercise of qualities which belong 
properly to the agent, yet his conduct, so far as concerns the sub- 



CHAP. III.] 



OF FREE INSTITUTIONS. 



39 



stantial interests of the principal, will, in ninety-nine cases in a 
hundred, be determined by the last. 

There is this difference, however, between the two cases ; that where 
one man employs another to transact his private affairs, there is a 
singleness, an unity of purpose, which it is easy to impress upon the 
agent, but which cannot be exactly imitated, where, instead of one 
agent, there are hundreds, and instead of one principal, there are 
thousands. The distinction is one of great consequence, and yet, it 
does not detract from the truth of the observation, that the active 
political power which exists in a republic, is partitioned between the 
public officers and their constituents. But the distinction points to 
a very important end which representative government is adapted to 
accomplish. 

For, as in order to execute the joint will of a very numerous society, 
it is indispensable that agents should be employed; these agents, 
whose number is very small when compared with the whole population, 
act as convenient instruments for separating the more prominent inte- 
rests of society, from those which are of less moment. Their com- 
manding position naturally leads them, amid the great variety of 
discordant opinions which are afloat, even in a small section of the 
country, to distinguish between those which are of vital and general 
importance, and those which are the offspring of temporary prejudices, 
and local feelings. In this way, the multifarious business of an exten- 
sive community is brought under some systematic rules, and a char- 
acter of oneness, and uniformity is impressed upon the movements of 
the government. 

But there are instances in which the relation of principal and agent 
exists in its utmost strictness. The opinion and views which the 
representative is appointed to carry out, are not all of the same kind. 
Some are very complex : that is, they require a great many acts to be 
done, and a variety of unforeseen circumstances to be taken into 
account; and there are others, pointing to a single end, which cannot 
be mistaken. In the last the will of the constituent may be impressed 
upon the deputy, as completely as the stamp impresses its image upon 
wax. 

The election of president of the United States is a remarkable 
example of this. On that occasion, a greater number of electors 



40 



NATURE AND TENDENCY 



[book ti 



than ever was known in Christendom are assembled, and although 
an intermediate body is chosen by them, for the purpose of making 
the election, yet, those secondary electors invariably vote for the 
person who has been designated for the office by the primary electors. 
The result is reduced to absolute certainty, before the colleges of 
electors meet. Thus in a case where the electors arc most numerous, 
and where it was supposed impossible to produce any thing like 
harmony of opinion, the agreement is most complete. And what 
is of still more importance, where the public officer is elected 
to preside over the whole population, and to embrace the greatest 
diversity of views, a character of unity is most effectually impressed 
upon him. As the extent of country, and the great number of the 
electors, remove him to a great distance from the people, and tend to 
weaken his responsibility, it is of great consequence to exhibit 
before his eyes an example of the facility with which public sentiment 
can be united to all leading public measures, and of the equal facility 
with which he can either be made, or unmade. 

In order to determine, with something like exactness, the closeness 
of the relation which exists between the representative and the 
constituent, where the duties to be performed involve a multitude 
of acts, the most satisfactory method would be to ascertain what 
proportion of the laws enacted have afterwards been repealed; 
distinguishing between those cases where the repeal has taken place, 
in consequence of the representatives having gone counter to the 
will of their constituents, from those where it has been brought 
about by a change of opinion on the part of the people themselves. 
And I apprehend that cases falling under the first class would be 
found to be exceedingly rare. A repeal effected by a change in 
public sentiment, is obviously an example of the strictness of the 
relation. 

It is common to talk of the powers of government, and the 
liberties of the people. But this is rather in analogy with the 
structure of the European communities, than in accordance with 
the genius of free institutions. The people of the United States 
do enjoy a very large share of liberty; but its character is such, 
as necessarily to endow them with a large amount of active power. 
Their power constitutes the guarantee of their liberties. When we 



CHAfr. III.] 



OF FREE INSTITUTIONS. 



41 



consider that, until very recently, all Scotland contained no greater 
number of electors than an ordinary county in America; that the 
members of parliament from the cities were deputed by self consti- 
tuted bodies, composed each of thirteen persons; that a majority of 
the members of parliament are now elected by a minority of the 
whole number of electors; that the throne, the aristocracy, and 
the ecclesiastical establishments exist, without any direct dependence 
upon the public will ; that the right to bear arms, and the right of 
association are exceedingly restricted, we may form some idea of the 
importance of the distinction between popular power, and popular 
liberty. 

It is remarkable that the three great maxims on which republican 
government reposes, were recognized, and formally promulgated, by 
the Italian states of the middle ages: 

1st. That all authority exercised over the people originates with 
the people. , 

2d. That all public trusts should return periodically into the hands 
of the people. 

3d. That all public functionaries are responsible to the people for 
their fidelity in office. 

And yet it would be a great mistake to suppose that the people 
of these states, from the highest to the lowest, had any more idea of 
free institutions, than the philosophers of their day had of the theory 
of the terrestrial motions. We might with as much propriety rob 
Hervey of the credit of discovering the circulation of the blood, and 
attribute it to physicians in the time of Cicero. For when we inquire 
who the people (the inseparable condition of the three maxims) were, 
we find that they were a mere handful of the population. In the 
Florentine state, the best modeled of those republics, with a popula- 
tion of more than a million, the electors never amounted to more 
than twenty-four hundred; sometimes to a much less number. And 
the cruelties practiced by those invested with authority, were not 
excelled in any of the monarchical governments of even that day. 

The artificial forms of government, by the oppression, and inequali- 
ties of one sort or other, to which they give rise, lacerate the mind, 
sour the temper, and goad to revenge. There is no escape from the 
ills they inflict. They are of yesterday, to day, and forever. Free 



42 



NATURE AND TENDENCY 



[book b 



institutions introduce heart burnings enough into society. But these 
only constitute a state of discipline, by which men are rendered more 
wise, more prudent, and more just, than they would otherwise be. 
A vast field is left open to individual liberty, so that the mind, instead 
of being deprived of its elasticity, and vigor, is incessantly braced 
to fresh exertions, in order to turn all the difficulties of life to the 
best account. 



CHAP IV.] 



OF FREE INSTITUTIONS. 



43 



CHAPTER IV. 

THE PRINCIPLE OF EQUALITY TO WHAT EXTENT CAN IT BE CARRIED, 

It was a great imperfection attending society before tlie invention 
of printing, that there was no means by which human experience 
could be made thoroughly available at a subsequent period, or in 
remote countries. It is not only important that knowledge should be 
diffused among the men of the present day; it is also important that 
their successes and miscarriages should be recorded and appreciated 
by those who come after them, and by those who are separated from 
each other by the greatest distances. Printing has remedied this 
imperfection. It not only extends information ; it extends the bounds 
of human experience ; since this is very properly understood to include 
not merely what is personal to the individual, but whatever can be 
distinctly realized as matter of fact. Mere speculation does not move 
the great mass of mankind; but example, sympathy, imitation, all 
have a wonderful influence in molding their dispositions and conduct. 
Those who live apart from each other are now initiated into the form 
of society, the habits of thinking, and acting, and the actual working 
of the institutions which prevail among each. They are enabled to 
distinguish what is practicable, from what is proposed as a merely 
plausible theory; and, as very nearly the same feelings beat in the 
bosom of all men, every important amelioration of the condition of 
our race in one country, is regarded as a body of experience, which 
may be made more or less available in all others. 

This enlargement of the bounds of human experience, so as 
to take in what is transacted in distant countries, as well as 
what is acted on the spot, is exemplified in the case of America. 
The political institutions of the United States may be described as 
the greatest experiment which has ever been made upon human 
nature. Their influence upon the European mind has already been 



44 



NATURE AND TENDENCY 



[book l 



immense. It is natural, therefore, that they should afford matter for 
deep contemplation, and that they should excite intense interest 
wherever they are known. 

No one has even the right to indulge in fanciful and visionary 
speculations as to the form into which the institutions of society may 
be cast. But where our researches are pursued with care ; where they 
are bounded and limited on all sides by a long and instructive expe- 
rience, they may be rendered highly instrumental in shedding light 
upon the two great problems in politics : what ought, and what may 
be made to be. It is not necessary that intelligence should be 
diffused in exactly equal proportions, among all the individuals com- 
posing a community, in order to found free institutions. It is true, 
knowledge is power, in politics as well as in private life, and may be 
made the instrument of detriment as well as of benefit. And if the 
interests of the great bulk of the population are delivered over to the 
less numerous body, who consist of the enlightened, it may seem 
difficult to escape from the conclusion, that a species of moral 
servitude must be established, let us adopt what form of government 
we please. Why it is not necessary, therefore, that all the members 
who compose a democratic community should be raised equally high 
in the scale of intelligence, and what is the extent to which intel- 
ligence should and may be actually pushed, are necessarily inquiries 
of great interest and importance. 

In a commonwealth where the structure of society is such as to 
give rise to an uniformity of interests among the population, or to any 
thing approaching to it, it will, to a great extent, supersede the 
necessity of an equal distribution of knowledge. There may be the 
greatest diversity of knowledge amid the greatest sameness of 
interests, and without occasioning the least interruption to it. 
Knowledge is the instrument by which the interests of men are 
managed ; but it is not itself, at least in its highest degree, one of 
those interests. And if in a state where the elective principle 
prevails, this settled uniformity of interests is the result of causes 
which are inherent in the framework of society, public men will be 
disabled from interfering with the interests of others, without dealing 
wantonly with their own. The same laws which govern the ruled, 
govern also the rulers. The ability to act is restrained and limited 
by the principle of self interest. And the administration of public 



chap, iv.] OF FREE INSTITUTIONS. 45 

affairs is obliged to take a direction conformable to the public welfare, 
because the general welfare and private interests meet and terminate 
at the same point. 

But this approach to an identity of interests among the whole 
community, does diffuse knowledge to precisely the extent which is 
wanted : 1st. Because it renders the intercourse of all classes more 
thorough and easy. 2d. Because it presupposes a tolerably equal 
distribution of property, and the diffusion of knowledge is inseparable 
from that of property. Not that the elevated attainments of the intel- 
lectual class will become the common property of the whole people, for 
that can never be ; but that species of knowledge which has to do 
with the material interests of this world, will insinuate itself into the 
minds of all. Our acquaintance with any subject is in proportion to 
the concentration of the attention upon it ; and the great bulk of 
the population, by having their attention constantly fixed upon that 
sphere of ideas which incloses all their substantial interests, may be 
trained to a degree of knowledge which will be more effectual for the 
purposes of society than the greatest learning, and the profoundest 
attainments. What is lost in variety and comprehensiveness, will be 
more than made up by the practical and serviceable character of the 
knowledge actually acquired. 

If in France, before the revolution, four-fifths of the landed 
property of the kingdom was engrossed by the nobility and clergy ; 
and if in the United States there is no such artificial monopoly, but 
the division of the soil has followed the natural direction which private 
enterprise and industry gave to it; the great difference in the 
structure of society in the two countries is sufficiently explained. 
All the moral causes, which in the last country now contribute to 
perpetuate the existing state of society, may be fairly deduced from 
this simple arrangement in the beginning. The principle of equality 
has thus found a natural support in America. It has not been the 
creature of the laws. These assist in upholding it, by giving it a 
visible activity in public life; but both it and the laws are the 
offspring of circumstances, which no legislature could have had power 
to alter. 

Two inquiries of exceeding interest now present themselves : 1st. 
To what extent is political equality dependent upon the natural or 
civil equality of men ; and to what extent can the last be pushed. 



40 



NATURE AND TENDENCY 



[book t. 



2d. If political equality is itself the result of causes which are pecu- 
liar to America; and these causes should cease to act, or act with 
less force at a future period; may not the political institutions, and 
the form of government, undergo in the progress of time an entire 
revolution. Each of the propositions : the laws secure political 
equality, and the laws have sprung from a given state of society, are 
clear enough. But it is important that our speculations should be 
built upon something more than a barren generality ; that, so addres- 
sing ourselves to the reason of mankind, we may employ our own 
reason in throwing out hints for their meditation. 

The distribution of property, in any community, will depend in some 
degree upon the amount of the population. In a state which is 
densely peopled, there will probably be a very large class of rich,, and 
a still more numerous class of poor. Not that this proportion may 
not exist, where the population is thin. For it was undoubtly the 
same, or even greater in all the European states, five-hundred years 
ago, than it is at present : although the population has more than 
trebled in that time. But in the one case, there is at least a physi- 
cal possibility of rectifying the proportion, which does not exist in the 
other. Where there are large tracts of uncultivated land, human 
ingenuity, and industry, with a very slight assistance from the laws, 
may suceeed in placing private fortune more upon a level. But where 
the soil has been appropriated for centuries, the inequality which 
shows itself, after a long period of commercial and agricultural ac- 
tivity, must be ascribed in part to that very ingenuity and industry, 
and in great part also, to the political institutions themselves. 

But within certain limits, an increase of population may be highly 
favorable to the distribution of property. Capital and labor are aug- 
mented by it ; and the supply of both affords the means of breaking 
up large estates into smaller parcels. It is only when the population 
becomes very dense, that on the one hand capital accumulates to such 
a degree as to create a large class of rich ; and that on the other, 
labor becomes superabundant, which gives rise to a still larger class of 
poor. 

There are several causes which tend to counteract the increase of 
population, when it has reached a certain degree of density. The 
mortality becomes greater, the births fewer, and the average age of 
marriage higher. But these changes do not all of them take place, 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



47 



with any thing like the regularity which might be expected. For in- 
stance, it appears to be certain, that the mortality in Great Britain is 
much less than it has been at any preceding period : that it is less 
than it was when the population was only one half what it is now. 
Lord Brougham computes it at 1:58; Mr. Malthus at 1:51; while 
the census of 1839, taken since, and the only accurate register which 
has ever been made, finds it to be 1:45. The two first would have 
been enormously low proportion. The last is low, and indicates a less 
mortality than in any country which ever existed, and containing an 
equally dense population. Although the population has increased 
greatly within the last fifty years, yet the general standard of com- 
fort throughout the island has improved in a still higher proportion. 
And although it cannot be true, as has been conjecturally estimated, 
that the average age of death, or the expectation of life at birth, 
has mounted up from sixteen to thirty-three years, it is plain that it 
must be greatly higher than it was sixty or seventy years ago. 

But increase the population a few millions more, and the mortality 
would then tell in a greatly increased ratio. Whatever may be the 
increase, however, and in spite of all the influences which have hitherto 
been brought to bear upon society, there is a tendency in every civi- 
lized community, to such an augmentation of the population as is 
inconsistent with any thing like an equal distribution of property. 
Even the equal partibility of inheritances only partially corrects the 
evil. Primogeniture was unknown in the Grecian or Roman common- 
wealths. In France, it never prevailed universally. And in Spain, 
equal partibility was always the rule, and primogeniture the excep- 
tion. Yet in all these states, there existed extreme inequality in 
private fortunes. The laws, the character of the government, may do 
much toward either promoting, or preventing, the disparity of estates. 
And it is one reason why free institutions are preferable to any other that 
they contribute to produce this last effect. But the inquiry of great- 
est moment is, whether there are any laws of our nature which, inde- 
pendently of the political institutions, or with every assistance which 
they may legitimately afford, can have power to establish, and 
maintain any thing approaching to an equality of private fortunes. 
It seems natural to suppose, that when we are in possession of an 
advantage up to a certain degree, that it may be pushed to a still 
higher degree ; and so on indefinitely : and that that cannot be an 



48 



NATURE AND TENDENCY 



[book i. 



impossible state of society, which only consists in the addition to 
actually existing facts — of facts of the same kind. And this would 
undoubtedly be a correct mode of reasoning, if the new facts to be 
added did not depend upon the voluntary action of a vast multitude of 
persons, amongwhom there exists the greatest diversity of dispositions. 

In tracing the generality of individuals through life, and observing 
how they conduct themselves, amid the vehement struggle to acquire 
property, it is remarkable how little difference we can discover 
between the capacities of those who succeed, and of those who fail. 
Some move forward with amazing velocity, to the end they have in 
view, and heap riches upon riches; some lay behind, and are only 
able, through the whole of life, to obtain a comfortable subsistence ; 
while others continue in a state of painful destitution, from the begin- 
ning to the end of their career. And yet but for the result, which, to 
ordinary observation, seems to set the stamp of superiority upon 
some, we should not be able, in the majority of instances, to perceive 
any adequate reason for so striking a difference. So far as the facul- 
ties of those individuals, either natural or acquired, are concerned, 
there seems to be no very material difference. But that there must 
be some difference, in that undefinable quality which we term the dis- 
position, is clear ; otherwise the consequences would not follow. We 
know too little of the individual man, to be able to handle, with any- 
thing like accuracy and discrimination, the secret springs which 
actuate human conduct. A fine writer has remarked of the character 
of the emperor Napoleon, that it presented a problem to be studied. 
But in truth, the character of almost all the individuals we meet 
with, however obscure they may be, and however limited their faculties, 
presents very nearly the same problem. Whoever was able to unravel 
the mind of the least of these, would be able to decipher that of 
Napoleon at a glance. 

Some men are roused, and quickened by adversity; while the facul- 
ties of others are clouded, and overwhelmed by it. Some are 
strengthened by prosperity; others are blinded, and led astray by it. 
And and as there is an endless variety in the working of these causes, 
arising from inconceivably small differences of temperament, and the 
perpetual interference of what is termed accident, their successes, and 
miscarriages, will be marked by innumerable shades of difference, too 
secret, and too fine, for our analysis. It seems certain, however, that 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



49 



until we can master man's nature, it will be impossible to impress 
anything like an exact similarity of character upon individuals. And 
he who cannot take to pieces his own mind, must necessarily fall 
infinitely short of that task. The division of labor, which is intro- 
duced so extensively into every department of industry, is both a 
consequence and a cause of the inequality in the fortunes and con- 
dition of individuals. But if that were banished from society, not 
the ten- thousandth part of the comforts and enjoyments of life would 
exist for any one. To say that every one should be his own builder, 
manufacturer, and cultivator; to declare that each one should be 
tailor, shoemaker, and cook, would be very nearly the same as saying, 
that there should be no houses, no decent and comfortable clothing, 
and a very scanty supply of food. There would be nothing to set in 
motion that immense mass of industry which now affords employment 
and subsistence to multitudes of men. The population would be 
gradually drawn within the narrow limits of a savage tribe; the most 
opulent and flourishing community would be carried back to the 
primitive state of barbarism. The annihilation of industry as a 
system, would involve the annihilation of all moral and intellectual 
culture. 

At the same time, it is evident that the division of labor, which 

bestows such countless advantages upon society, cannot exist without 

giving rise to very great inequality among individuals. It is only 

necessary to consider any of the most inconsiderable of the objects of 

mechanical skill, to be assured of this fact. The workman who is 

employed in the manufacture of knives, or pins, is condemned to an 

occupation which, turn the subject in whatever light we may, cannot 

possibly improve his fortune, or elevate his faculties, so as to place 

him on a level with the master manufacturer. Nor would it remedy 

the difficulty, to divide the profits of the last equally among all the 

workmen. For even admitting that he would feel the same powerful 

stimulus as before, in the prosecution of his business, now that the 

disposition of his own property was violently interfered with; and 

that the workmen would submit to the same patient and indefatigable 

industry, without which the plan must fail ; this distribution would only 

tantalize, without satisfying, the desires of any one. What would be 

a splendid income for one man, would, when divided among hundreds, 

be no sensible addition to their enjoyments. There must be some 
4 



* 



50 



NATURE AND TENDENCY 



[book l 



wise purpose intended in this constitution of society. It may be, 
that in a civilized community, this variety in the pursuits of indivi- 
duals is absolutely necessary to maintain the mind in a sound and 
healthful condition; or it may be, that employment and occupation, 
without regard to the variety of pursuits to which they lead, are 
indispensable to balance the mind, and to restrain the animal propen- 
sities within due bounds. For without the division of labor, there 
would not only be little or no variety, but the occupations would 
nearly all cease to exist. At the same time, it is clear, that while 
some are engaged in the higher, and more important part of the work, 
others must be engaged in the inferior, and subordinate branches. 
So that to maintain civilization at all, there must be inequality in the 
fortunes and condition of individuals. There is no escape from our 
human condition, whatever may be the shape into which the elements 
of society are thrown. 

If we suppose that the distribution of the incomes of capitalists, 
would place so large a number of the operatives in an improved con- 
dition, as to withdraw them from work, the supply of labor would be 
diminished, wages would rise, there would be more leisure, greater 
opportunities. But the high wages would, in a single generation, lead 
to an increase of the population, to a supply of the demand, and to a 
renewal of the old state of things. 

The distribution of property by law, even if it placed every one in 
comfortable circumstance!?, would paralyze the springs of industry. It 
would diminish the vigor and activity of those who had acquired 
much, and increase the sloth and inertness of those who had acquired 
nothing. This equal division of fortunes would apparently tend to 
an equality of enjoyments; while an equality of industry and exer- 
tions, which is of far more consequence, would be overlooked. If all 
were placed in prosperous circumstances for one year, the next would 
witness the decline of great numbers ; and in a few more, there would 
be the same inequality as before. We would absurdly introduce 
equality, for the purpose of bringing about inequality. 

It would seem that not only our own infirmities, but that the infirmi- 
ties of those around us, are absolutely necessary to goad any one to 
exertion. They who propose the plan of distribution, or, which is the 
same thing, to make the people work in common like so many galley 
slaves, forget that the true way of strengthening the public virtues, 



CHAP IV.] 



OF FREE INSTITUTIONS. 



51 



is to nourish the private affections, and that to turn all our efforts 
exclusively in one direction, would be to eradicate some of the best 
qualities of human nature. That is the best, because it is the natural, 
arrangement of society, which gives full play to the faculties of all 
orders of men. If it is beyond our power to control the private 
affections — if we eannot make men love other men's children as they 
do their own — it must be equally impossible to control the exertions 
which are the fruit of those affections. The instinct which leads man 
to become the center of a family, is as much a part of his constitution 
as that which leads him to society. To give an undue preponderance 
to one of these, would not be the application of a new regimen to his 
conduct ; it would be a vain attempt to alter the laws which govern 
his nature. All the private affections, in reality, conspire to the 
general weal. They introduce into the moral world the great principle 
of the division of labor. More industry and sagacity are exerted — a 
greater amount of both public and private virtue is developed, than 
under any other arrangement. To dislocate, therefore, any of the 
important springs of human conduct — to declare that one should have 
the mastery — would establish a state of society in which we should 
avail ourselves of only half the man. 

If we could realize the views of Mr. Malthus, and introduce into a 
population which was threatening to become crowded the general 
prevalence of the check to early marriages, it would be followed by 
some very salutary consequences. But to carry it as far as is desi- 
rable, and so as to make it tell with a decisive and permanent influence 
upon society, might be attended with very many disadvantages. The 
idea is, that it would be an effectual way of elevating the condition 
of the masses, because it would keep down the numbers, and render 
the circumstances of the actual population more easy. Let us suppose 
then that the check had begun to operate in England about seventy 
years ago. ' Wages might now be so high as to cause every depart- 
ment of industry to languish. English manufacturers would have 
been undersold in every foreign market. Other nations would have 
been in a condition to supply the English people with every species of 
manufacture, and every article of food. But the last would be 
deprived of the means of purchasing from other nations, and the 
consequence is, that England may have been one of the poorest instead 
of the richest country in Europe. The more thin population which 



52 



NATURE AND TENDENCY 



[book I. 



would now exist, would be in infinitely worse circumstances than at 
present. In Norway, the check to early marriages exists in greater 
force than any where else, and it is a poor country, and an abject 
population. 

I know nothing which would confer more salutary and lasting 
benefits upon society, than to raise the general standard of comfort 
of the population; provided, it be done without producing effects 
which would counteract its operation. But to raise the standard of 
comfort in any European community as high as every lover of 
humanity would desire, would be the same as to raise wages so high, 
as to enable every one to maintain his family in comfort, and to give 
them an education. And the consequences would be the same as 
before. The country would be undersold in every article of produc- 
tion ; every branch of industry would decline, until a foreign population 
poured in, to receive lower wages, when the standard of comfort would 
be again reduced. The plan would undoubtedly succeed if we could 
introduce it alike into all countries. But if it has entirely failed in 
any one, except to be taken notice of by way of comparison with the 
condition of some others, it would require the will of Omnipotence to 
accomplish it. 

All human exertions to better the social organization must neces- 
sarily be bounded within certain limits. Something must be taken 
for granted, as the elements of all our reasoning in politics as well as 
in other sciences. We cannot be permitted to construct ideas, which 
a fertile imagination has suggested, and which only approach toward 
being verified in part, because they cannot be verified universally. 

Let us suppose that all those who have succeeded in life, and who 
are placed in good circumstances, were to go among the poor and 
ignorant, open up all the secrets of their hearts, recount the whole 
train of circumstances which contributed to elevate their condition, 
I can conceive of nothing which, for the time being, would so much 
expand the bosoms of those who believed, either rightly or erroneously, 
that fortune had frowned upon them. But, first : the thing cannot be 
done. Such a fearless and unreserved revelation of one's whole 
thoughts and actions can proceed from none but angels. Second : the 
exposition of so great an amount of infirmities, as the revelation 
would disclose, and as would be shown to attend frequently the most 
enviable condition, would cause the vicious and the ignorant to hug 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



53 



vice and ignorance still closer. The greater part would become more 
bold and confident than ever, since there was no such broad mark of 
distinction, as had been imagined, between the highest and lowest 
condition. And one great check to irregularities of conduct would 
be removed. The counselors and the counseled in such an enterprise 
are equally covered with all sorts of infirmities. And the true way 
to get rid of these is to proceed upon the belief that they do not 
exist, or, at any rate, that they are only adventitious. In this way 
every one will be nerved to a greater amount of exertion than would 
otherwise be the case. If those who are placed in what is termed 
low life could penetrate the gaudy exterior of high life, they would 
find as little enjoyment as in their own humble sphere. Wealth 
creates full as many disquietudes as it heals. Fortunately they are 
unable to lift the veil ; for then, perhaps, all human exertions would 
speedily come to an end. 

It may then be inquired why do legislators constantly inculcate the 
maxim that all men are equal. And the answer is plain: First. 
Because to teach and to act upon it is the only way of attaining 
equality, to the extent to which it is actually attained. Second. 
Because it is not in the power of government to make any thing like 
an accurate discrimination between the inequalities of different men, 
and the attempt to do so would be to encroach upon those points in 
which there is no inequality. Third. Because the principle of 
equality may very well be recognized as the rule among men as 
citizens — as members of a political community, although as individuals 
there may be great and numerous inequalities between them. The 
utmost which the citizen can demand is that no law shall be passed to 
obstruct his rise, and to impede his progress through life. He has 
then an even chance with all his fellows. If he does not become their 
equal his case is beyond the reach of society, and to complain would 
be to quarrel with his own nature. 

It cannot be concealed that a difficulty now presents itself which 
is entitled to particular attention. Here are two sets of ideas which 
do not quadrate with each other : equality proclaimed by the laws, 
and inequality in fact. And as, notwithstanding the artificial distinc- 
tions which we may make between the individual and the citizen, the 
former may be disposed to carry all his prejudices, narrow views, and 
selfish interests, into the arena of politics, it might be supposed that 



54 



NATURE AND TENDENCY 



[BOOK li 



a sense of discord would be introduced, which, after lasting for a 
given period, must terminate in the ascendency of one or other of 
these rival principles. Hence the misgivings of many persons, other- 
wise possessing good sense and reflection in an eminent degree. If 
they do not believe, they at any rate doubt whether the undisguised 
recognition of the principle of equality in America is not destined to 
take entire possession of society, and ultimately to level the whole 
fabric of its institutions. The masses are put in possession of the 
same privileges as the educated and the wealthy; and, in the event 
of a struggle between the two orders, will not numbers be sure to 
gain the advantage. 

But the principle of equality is itself the parent of another prin- 
ciple, which sets bounds to it, and limits its operation in practice. 
The same laws which declare that all men are equal, give unbounded 
scope to the enterprise and industry of all. Neither family, nor 
rank, nor education confer any peculiar advantages in running the 
career which is now opened. In many respects they even throw 
obstacles in the way. Men without education, with ordinary facul- 
ties, and who commenced life with little or nothing, are continually 
emerging from obscurity, and disjjlacing those who have acquired for- 
tunes by inheritance. They constitute emphatically the class of rich 
in the United States. It is the principle of equality there which 
introduces all the inequality which is established in that country. 
The effects are visible to every one, and are understood and appre- 
ciated by the most ignorant men. Every one is a witness to the 
miracles which industry and common sagacity produce. No one dis- 
trusts himself ; no one can perceive those minute shades of character 
and disposition, which determine the destiny of some individuals, 
making some rich, and leaving others poor. All place an equal reliance 
upon their own efforts to carve out their fortunes, until at length the 
period of life begins to shorten; when cool reflection and judgment 
take the place of the passions ; and whether they have succeeded or 
failed, a new feeling comes over every one — a disposition to submit 
quietly to what is the inevitable, because it is the natural progress of 
things. 

Thus as it is impossible among millions to say who, in running the 
career of wisdom, influence, or wealth, will attain the goal. Govern- 
ment very rightly establishes the broad and indiscriminate rules of 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



55 



equality, and the very means which it makes use of to effect this 
object, obliterates all artificial distinctions, and brings out in bolder 
relief all the natural inequalities of men. And as a large proportion 
of the envious are constantly rising into the ranks of the envied ; a 
powerful check is imposed upon the revolutionary tendencies of the 
former. They cannot reach, nor after reaching, will they be able to 
enjoy, that which is the constant aim of all their efforts, without lend- 
ing an earnest and vigorous support to the laws under which they 
live. And in this way, free institutions are saved from shipwreck, by 
the thorough and undisguised adoption of a principle which seemed 
calculated to produce precisely opposite effects. It affords a remark- 
able example of the intimate union between two things apparently 
contradictory ; and to what an extent the system of compensations 
exists in a country of free institutions, by means of which the defects 
of one part are cured by some effectual contrivance in another. 
Hence the surprise which has been constantly expressed by Europeans, 
from the day the corner stone of the American government was laid, 
down to the present, that although a degree of liberty has been com- 
municated to the people, utterly unknown at any preceding period, 
society exhibits more evidences of happiness and prosperity than are 
visible any where else ; that for so large an empire, wonderful tran- 
quility prevails ; and that the political institutions, instead of losing 
strength, are in reality increasing in solidity and firmness. There 
does exist in that community, as much as in any other, a powerful 
control upon the unruly elements of society. But this is not the 
result of an artificial system; the control is wider in its operation 
than any where else ; and it is, for that reason, more effectual than in 
any other government. 

They who entertain fears that the enjoyment of so much liberty in 
the United States will exert any other than a favorable influence upon 
the social organization, and the political institutions, should recollect 
that equality may be a regulative principle of the highest importance, 
without ever being pushed to any thing like the furthest extent. The 
laws may presuppose the possibility of pushing it so far, just as the 
precepts of morality suppose, that they may be carried in great per- 
fection into the practice of an individual. The advantage of having 
some great principle constantly in view, is that it will then be sure of 



56 



NATURE AND TENDENCY 



[book I. 



having some influence upon some individuals, and a very great influence 
upon all others. Human nature modifies, and sets bounds to all laws ; 
but in order to render the principle of equality efficacious as a regulative 
principle, it is necessary to admit the abstract rule in all its univer- 
sality. The more widely the rules of morality are circulated, and the 
more earnestly they are insisted upon, the greater will be the number 
of those whose conduct will be formed by them: and the more 
thoroughly the maxim of equality is taught, the more numerous will 
be the persons who will strive to make themselves equal to the 
wisest, and best. More vigor, enterprise, and intelligence, will be 
imparted to every one ; and the moral force communicated to society 
will contribute to rectify the very disorders which are supposed to be 
inseparable from the recognition of the principle. 

Although then the struggle for equality never can produce equality 
in fact, yet there is an immensely wide scope within which it may op- 
erate. If the wealthy, and those who found themselves upon the 
advantages of family, and rank, feel themselves incommoded by this 
eternal jostling — this continual struggle of the inferior classes to 
rise to their level — I can easily conceive that the inconvenience may 
be productive of very great advantage. 

If the difference between the higher and lower classes, in point 
of morals and intelligence, is not so great as is supposed ; if the 
former wear, for the most part, an outside show; the struggle for 
equality, by unveiling them, by exposing their false pretensions, wiH 
apply a sort of coercive influence to compel them to act up to the 
duties of their station. They will at first endeavor to rid themselves 
of the inconvenience, by descending to the level of the lowest — by 
imitating their manners, and truckling to their prejudices. The effect 
will not be lasting ; the plan cannot be carried out. And, after vain 
efforts to reconcile qualities the most incompatible, they will be 
driven to the necessity of cultivating habits which, as they most 
become, so they are universally expected from them. If adversity 
contributes to elevate the human character, and if the struggle for 
equality is to be regarded as a species of adversity which is constantly 
present with us, it cannot fail to exercise a salutary influence. The 
diffusion of property and education are not sufficient to produce the 
degree of reflection which is requisite to maintain free institutions. 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



57 



The acquisition of property, notwithstanding its manifold benefits, has 
a tendency to undo all that education has done. The affluent become 
too contented, too self-complacent, to be either virtuous or wise. The 
ever enduring struggle for equality is the only agent which, united 
with property and education, will conduce to the right ordering of 
society. 



58 



NATURE AND TENDENCY 



[book I. 



CHAPTER V . 

THE ELECTORAL FRANCHISE. 



There are two plans upon which we may proceed in forming a con- 
stitution of government. By one, the political power is vested in a 
select number, composing what is termed the aristocracy of wealth 
and talent. And to accomplish this the electoral franchise, and the 
eligibility to office, are both restricted. The advantages of the plan 
are supposed to consist in the greater stability of the public adminis- 
tration, and the superior energy which the government will possess, in 
suppressing every species of insubordination. The second plan opens 
the door wide to the electoral privilege, and the admission to office. 
Doubtless the great problem in political science is to procure the 
greatest amount of liberty, consistent with the greatest degree of 
public tranquillity. And as we are compelled to take for granted, 
that a large portion of the vice and licentiousness which have charac- 
terized the people of former times will always be found in society, 
it may be argued that the first plan is the safest and the most judi- 
cious; but the republics which flourished in Italy, in the thirteenth 
and fourteenth centuries, were modeled upon this plan, and yet were 
a prey to the most atrocious violence and tyranny. For after this 
disposition is made of the political power, the question still occurs-* 
in what way shall the governors themselves be governed? A large 
share of authority is conferred upon the government, for the purpose 
of preserving order, and yet this authority is without any effectual 
control. Opening the door wide to every species of political privilege, 
is the most certain means of increasing the natural aristocracy, and 
of combining vigor in the government with popular freedom. For it 
is remarkable that although in the Italian republics the public officers 
were generally elected for very limited terms, for six, and sometimes 



CHAP. V.] 



OF FREE INSTITUTIONS. 



50 



for so short a time as two months, it imposed no check upon the 
exercise of the most arbitrary authority. The moral sense — the per- 
ception of the plain distinction between right and wrong, was wanting 
in the whole community. There was ample power and opportunity 
to render the principles of responsibility a powerful restraint upon 
the conduct of public men; but there was no adequate appreciation 
of that conduct ; no more meaning was attached to the words just 
and unjust, than belonged to them in the monarchical governments of 
western and northern Europe ; — a striking example of the important 
agency which the political institutions have in forming the manners 
and habits of different nations. In all those communities, the select 
few who were chosen to conduct the public administration were 
thoroughly trained to the requisite skill and intelligence: in the 
Italian republics to a much greater extent than in Great Britain and 
France, because at that day, the electoral franchise was much less 
restricted in the former. If, then, we extend political privileges of 
every kind still further, and convert the great body of the people 
into citizens, the conclusion is fair that the same skill and intelligence 
will be diffused among the whole population. Now, it is these very 
qualities which develop that moral sense — that quick perception of 
what is right or wrong in the conduct of public men — which I have 
noticed as being so deficient in the Italian communities. The men 
who held important posts in Genoa, Venice, and Florence, were suffi- 
ciently instructed, in consequence of their situation, in every thing 
which affected their own interests. But those interests were, by set 
design, placed in contradiction with those of the mass of the people. 
Impart to the latter the same privileges, and the contradiction will 
disappear. For inasmuch as these will feel an equally strong interest 
in the protection of their own rights, and will possess the moral power 
to enforce them, public men will be compelled to conform their con- 
duct more and more to this altered state of public sentiment. The 
standard of right and wrong will of necessity, and not from choice, 
have a just and definite meaning. No education can instill the moral 
sense in any individual. But a certain train of circumstances, and 
the discipline to which these subject the actions of men, are indis- 
pensable in order to develop it and keep it in constant activity. 

In the history of society we may remark three distinct grades of 
liberty, which have existed in different governments. The first is 



60 



NATURE AND TENDENCY 



[book I. 



where freedom is confined to the governors. This is the case in pure 
monarchy and aristocracy. Although the governments of Russia and 
Denmark are in no sense free, yet the Danish and Russian nobility, 
at any rate, enjoy as much political liberty as the American people. 
But the Danish and Russian people enjoy none. The second is where 
the people are divided into active and passive citizens ; the former 
possessing political liberty, while the latter live securely in the enjoy- 
ment of civil liberty only. The British government is the fairest 
example of this class which has ever existed. The third is where all 
the people are full and complete citizens, possessing both civil and 
political privileges. This can only be the case in a country where 
free institutions are established. 

It is not difficult to account for this great diversity in the structure 
of different governments. Society every where appears to have been 
at a very early period divided into distinct classes. This institution 
was, by no means, peculiar to Egypt and Hindostan. But the 
superstitious observances which were ingrafted upon it in those 
countries, and the immobile character of the population which pro- 
longed its duration, have rendered it more striking than any 
where else. 

The separation of the people into different orders lay at the foundation 
of the Grecian and Roman commonwealths. It may be distinctly 
traced in the history of all the modern European states; and vestiges 
more or less plain are discernible in most of them down to the present 
day. The division of the population into nobility, clergy, burgesses, 
and peasantry, constituted at one time the settled classification of 
society in England and Scotland. Some of the ancient charters and 
statutes even went as far as the Roman laws, in forbidding inter- 
marriages among some of the classes. Guardians were prohibited 
from " disparaging their wards by wedlock with persons of an inferior 
condition." An inferior caste was recognized, into which the military 
tenants could not marry without degradation. It is not necessary to 
account for this from the fact that, long after the Saxon conquest, the 
Roman law composed the groundwork of the jurisprudence. The 
operation of the same general laws, which gave rise every where else 
to the existence of fixed classes, produced the same effect in England. 
No doubt now remains out what the institution originally grew out of 
conquest — probably out of successive conquests. The conquerors 



CHAP. V.] 



OF FREE INSTITUTIONS. 



61 



composed the superior, the conquered the inferior ranks. , In the 
course of time the different races in England and Scotland were 
melted into one. And the progress of civilization in the other 
European states has, in a great measure, obliterated this as well as 
every other remnant of an antiquated society. 

It is not the least remarkable of the circumstances attending the 
first settlement of the United States, that the native population were so 
thin and so immensely inferior to the emigrants, that it disappeared 
as fast as these advanced. If the country had been as fully peopled 
as Mexico, great difficulties would have presented themselves in the 
formation of that system of uniform institutions which now exist. 
The Indian race would have been disfranchised, precisely as are the 
Africans in both the northern and southern states. They would have 
composed as distinct a caste as these last do. The distinction would 
have been nearly the same as prevails in Hindostan. 

The most obvious idea which we can form of government, is that 
it is an institution intended for the common benefit of the whole 
people. Nor is there any difficulty in realizing this idea, where the 
population does not consist of different races. Mere varieties of the 
same race oppose no obstacle, as has been proved in America, where 
one uniform system of laws causes these varieties to disappear in two 
or three generations. But where the community is artificially dis- 
tributed into classes which possess unequal privileges, the term 
government loses its just signification. One part of the population 
is then forcibly elevated, and another depressed; and civil society 
becomes an institution, exclusively appropriated to the advantage of 
the former. The great body of the people live under, but not in, it. 

The disposition which governments shall make of the electoral 
franchise is destined to exercise a more important influence upon 
human affairs, than any other political regulation of which I am 
aware. And the reason is obvious. There is none which is calculated 
to produce so deep an impression upon the structure of society, and 
at the same time to affect so fundamentally the form of the govern- 
ment. The tendency every where at the present day, is to extend 
the privilege. For every enlargement of it increases the demand, by 
raising up a greater number of people who are fitted to exercise it. 
The improvement of the political institutions, and the improvement 
of the population, go hand in hand. 



62 



NATURE AND TENDENCY 



[book I. 



The notion of a property qualification, as necessary to entitle to a 
vote, seems to be derived from feudal institutions. A very few in- 
stances of the same kind are to be found in antiquity. The feudal 
law so completely united every species of political right with domin- 
ion in the soil; that even after a regular representative assembly 
grew up, the right of suffrage, as well as the capacity to hold office, 
was made to depend upon the fact whether the persons were landed 
proprieters, or not. In Great Britain, a qualification of this kind is 
still necessary : a freehold in county, and a leasehold in borough elec- 
tions. In Scotland, until recently, none but tenants in capite, that is, 
persons who held immediately of the crown (whether really, or con- 
structively, was immaterial), had a right to vote in county elections. 
For the most extraordinary part of the system was, that it was by a 
fiction only they were so denominated. It was not necessary that 
they should have any interest whatever in the soil. They possessed 
the franchise on account of what, in techinical language, is termed 
superiority. They were originally tenants in capite ; but it was in 
the power of any one to sever his superiority from his land ; selling 
the last, and yet retaining the former : the purchaser consequently ac- 
quiring no right to a vote. This was a strange anomaly at any time ; 
but that such a law should be found standing in the midst of the 
light of the nineteenth century, and in the most enlightened country 
of Europe, is difficult to explain by any sensible mode of reasoning. 
It shows that the artificial governments alone are able to reconcile the 
most heterogeneous and contradictory things — can insist that the 
public safety demands that property and power should forever go 
together; and then throw away the principle as unmeaning and value- 
less, and confer power upon those who have no property. The conse- 
quence of this state of things was, the electoral franchise was much 
more restricted, and the system of representation altogether more 
irregular, than in either England or Ireland. 

In France, since the creation of a house of deputies, a different 
plan has been adopted. The right to a vote depends upon the pay- 
ment of a certain amount of taxes, varying at different periods, from 
forty to sixty dollars for each individual. This presupposes the pos- 
session of property, but then it may be indifferently, either real or 
personal. The tax must be a direct one, but even if there is any 
real distinction between what are termed direct and what are termed 



CHAP. V.] 



OF FREE INSTITUTIONS. 



03 



indirect taxes, the former are deemed equally applicable to both kinds 
of property. In America, a property qualification was once necessary 
in all the state governments ; and in the federal government, the right 
to a vote for members of the house of representatives was the same 
as it was in each state, for the most numerous branch of the state 
legislature. The laws, however, have undergone a total alteration in 
almost all the states. Universal suffrage is now the rule, a property 
qualification the exception ; and the elections to the federal legisla- 
ture are obliged to conform themselves to the changes made in the 
respective states. 

The origin of a custom is never sufficient to determine its utility, 
nor to give us its true meaning at a subsequent time. Such changes 
take place in the frame of society, in modern communities, that an 
institution which was well enough adapted to a very imperfect civili- 
zation, may lose its signification and become highly injurious at a 
more advanced period. It is true, it sometimes happens that an 
institution which was fitted to answer one purpose, may, when that 
has ceased to exist, be found to answer some other end in a still 
higher degree. And, therefore, it cannot be stated as an universal 
proposition, that if the original design has failed, the institution should 
therefore be abolished. But it is still more necessary to guard against 
the opposite error, and never to take for granted that the antiquity 
of an institution is what entitles it to the respect of mankind. The 
prejudice is sometimes of advantage, by correcting the precipitancy 
of innovation. But in the greater number of instances, it only dar- 
kens and confuses the understanding, and contributes to retain society 
in a stationary condition. 

A property qualification has been defended in modern times, on 
two grounds: First, That property is the chief thing which the laws 
have to deal with, and therefore it is fit that the privilege should be 
worn by those who represent the most important interests of society. 
Second, That as a general rule, the possession of property affords a 
surer test of a capacity for the judicious exercise of the electoral 
franchise, than any other which can be devised. 

To disseminate property is to disseminate power; and on the other 
hand, the diffusion of liberty gives rise to the diffusion of both prop- 
erty and power. And as the true plan of balancing power is to 
prevent its concentration in the hands of a few — to distribute it as 



04 



NATURE AND TENDENCY 



[book I. 



widely as possible ; so the only mode by which we can contrive to 
govern the governors, is to open the way to all classes of men for the 
acquisition of property. And the most effectual way of doing this, 
is to extend the electoral franchise as widely as practicable. Neither 
the abolition of primogeniture, nor any other enactment of the civil 
code, has in the United States assisted so much in effecting a distri- 
bution of property, as have the political institutions. So that even 
admitting, as a general rule, that it is fit power and property should 
go together ; it cannot be wise to adopt a system, the direct effect 
of which is to prevent the growth and dissemination of property. 
Formerly, landed property constituted the principal capital of society. 
But the case is now very much altered. Industry, sagacity, and 
enterprise, though they can neither be seen or touched, compose, at 
the present day, the chief elements of wealth. No man, however 
affluent, can now tell with any degree of certainty how long his 
estate will continue to be enjoyed by his descendants; such is the 
rapidity with which the inert habits of those who are born rich 
permit property to crumble, and such the corresponding activity with 
which those who are born poor acquire the ability to appropriate that 
property to themselves. 

Why it is, that the communication of political privileges to a peo- 
ple imparts so much vigor and activity to their whole character, is 
not difficult to accouut for. It removes a feeling of degradation, the 
invariable effect of which is to benumb and stupefy the mind, if it 
does not produce worse consequences. It is true, one can hardly say, 
that the peasantry of Russia, or Austria realize this feeling ; since 
having been habituated, from time immemorial, to a state of complete 
subjection, they can hardly form an idea of the value of the privilege. 
But in all the constitutional monarchies of Europe, where the electoral 
franchise is already extended to a part of the population, those 
who are excluded from its exercise are able to make a comparison of 
their situation with that of others ; and a sense of their own inferi- 
ority is forced upon them. 

The great advantage arising from the free communication of the 
privilege consists, then, in its giving men new faculities, and not merely 
new rights. It enables them for the first time to realize a sense of 
degradation, which" they were before too much debased to feel. It 
places the great body of the population in the only condition in which 



CHAP. V.] 



OF FREE INSTITUTIONS. 



05 



it is possible to place them; where their understandings will he 
opened, their views enlarged, and their feelings elevated. Nothing- 
can be conceived more dreary, and monotonous, than the time which 
is passed in the drudgery of supplying our animal wants, if there is 
nothing besides to give variety and interest to life. The beings who 
are condemned to this species of subterranean existence, are never 
able to acquire the proper character of men. 

Medical writers have observed that nothing contributes so much to 
produce mental aberration, as the habit acquired by some individuals, 
of brooding over one train of ideas. The mind which is exercised in 
this way, is deprived of its healthful action; the balance between its 
different faculties is lost, and its strength gradually undermined. It 
is only in extreme cases that this takes place. But there is a con- 
dition of mind very similar to this, which may be termed fatuity — an 
intellectual torpor, which, in some countries, takes possession of whole 
classes; produced by the addiction to an exceedingly narrow round 
of pursuits, and which prevents the natural play of the mental pow- 
ers and affections. Long habit familiarizes the observer to this 
melancholy spectacle : but it is not the less an example of mental 
aberration, though in a much less degree than the state before de- 
scribed. Whoever has closely watched the countenances, and beha- 
vior of the peasantry of most European countries, when they arrive 
in the United States, must have been struck with this characteristic 
mark. There is an obtuseness of intellect, a withered and sunken 
aspect, a bent and difficult gait, which contrast strongly with the alert 
step and animated countenances of American agriculturists. 

There are two modes of rectifying this unfortunate condition of 
society — education, and the influence of free institutions. Education 
alone is not sufficient. The mind may take in the mere rudiments 
of knowledge, and yet its faculties never be developed. The insti- 
tutions under which we live, the social organization which encompasses 
us, are what give vitality and meaning to much the greater part of 
the knowledge which the bulk of mankind ever acquire. Liberty 
both imparts elasticity to the mind, and supplies the materials on 
which it is chiefly exercised. For the general communication of an 
important political privilege breaks down the wall of partition between 
the different classes. Men of low degree are brought into association 
with those who possess superior advantages. The former are taught 



66 



NATURE AND TENDENCY 



[book I. 



to have more self respect, more confidence in themselves ; and the 
wide range of general information which is now placed within their 
reach, inspires the greatest inquisitiveness imaginable in regard to the 
conduct of public affairs, in which they have now become actors 
themselves. All this, so far from withdrawing attention from their 
private pursuits, adds fresh vigor to their exertions, simply because it 
supplies such a fund of variety to life. And thus this unexpected 
consequence follows, that in a country where no property qualification 
is attached to the enjoyment of political privileges, the number of 
people who possess property is the greatest. And wherever the 
qualification is highest, the less is the number of those who have 
property; — a remarkable instance of the false train of reasoning to 
which the mind is frequently conducted, by an obstinate adherence to 
what is called the ancient and established order of society. 

There is an old maxim that the political institutions can never be 
made to rise higher than the manners. And a more pernicious one 
has never been incorporated into the book of politics. There is no 
difference in this respect between political and any other institutions. 
And if the maxim had ever been carried to any thing like its full 
extent, society would never have made a single step in improvement. 
For what are religion, education, and the body of conventional rules 
which preside over a community, but so many institutions, which, 
finding men ignorant and weak, lift them up and make them better 
and wiser. The true maxim is that the political institutions do exercise 
a most important influence upon the manners, and that every improve- 
ment of the former contributes to raise society to a higher level. And 
I am persuaded if some of the European governments I could name 
were resolved, manfully, but circumspectly, to rid themselves of the 
prejudice, that what has been must continue to be ; and if they would 
impart a large share of liberty to the people, that it would redound to 
the strength and prosperity of both government and people. 

There are several considerations, in addition to those already sug- 
gested, which go very far to show that a law which attaches a property 
qualification to the right of suffrage is unwise and without utility. 

First. Public opinion is becoming more and more the great 
moving force of all governments. It is then of the utmost importance 
to inquire what part of the population it is which contributes to the 
formation of this public opinion. Is it certain that it is only the 



CH4P. V.] 



OF FREE INSTITUTIONS. 



67 



class of proprietors ? Very far from it ; there are great multitudes of 
people in Great Britain and France who are totally disfranchised, and 
whose opinions and interests are of so much consequence as to render 
their influence, even when deprived of suffrage, of infinite importance, 
whether for good or for evil. And this constitutes the test of the 
expediency of a property qualification. If whole classes who are 
disqualified have sufficient weight in society to bear a part in the 
formation of public opinion, it decides the question in favor of a 
liberal rule of suffrage. If those who have faculties to think, and 
an abundance of curiosity with regard to all public affairs, are 
excluded from the privilege, they will succeed in spite of every effort 
the legislator may make in giving a direction to public opinion. 

I venture to say, that all the great measures of reform which have 
been set on foot during the last twenty years in Great Britain, have 
been brought about, in great part, through the influence of that nu- 
merous body of active and intelligent citizens, who are shut out from 
a direct participation in political power. But critical emergencies 
occur in all governments ; when the passions of different orders of 
men are violently inflamed ; and when what was before an invisible 
influence, will come to wear a more palpable form. The whole class 
of disfranchised, composed in part of sagacious and otherwise well 
disposed people, will then resemble a foreign force, rather than a 
body of orderly citizens; and may imagine, that in self defense it is 
necessary to batter down existing institutions. 

The British, and still more the French government, is placed in 
this position. Two hundred thousand electors in the last, where the 
adult male population is five or six millions, is too great a dispropor- 
tion; and it is not surprising that the fear of a disputed succession, 
or some other speck discerned upon the political horizon, should pro- 
duce so much apprehension among those who take the lead in public 
affairs. In Great Britain the reform bill extended the privilege con- 
siderably; but one thirty-fifth part of the population is much too 
small a proportion in a country where the standard of popular intel- 
ligence has been so much elevated during the last half century. I 
am not acquainted with all the views of the English chartists; but 
so formidable a body of men could hardly have been banded together 
in that great community, unless the electoral franchise was needlessly 
withheld from a very substantial part of the citizens, and unless those 



08 



NATURE AND TENDENCY 



[book I. 



who were so earnest in endeavoring to effect a reform, had been 
animated by the characteristic good sense of the Anglo-Norman race. 
There is no necessity for acquiescing in the extreme views of Mr. 
Bentham, or Major Cartwright: a wide field for profitable legislation 
is opened, whether we adopt or discard them. The chartists have 
assuredly paved the way for further concessions at some future day. 
The present law of parliamentary reform was talked about by the 
party in power, and the party in opposition, by Pitt and by Fox, as 
far back as 1786, and was achieved nearly half a century after. 

Second. A government which confines the electoral franchise within 
very narrow limits, fails to avail itself of the strength and faculties of 
the whole of its people. It is like the strong man cutting off his right 
arm with his left. In the United States, the enjoyment of the privi- 
lege by the great body of the people gives rise to order and tranquil- 
ity, instead of tumult and insurrection. For an unmistakable test 
is thus afforded, that all public measures follow the course which the 
majority have decreed. And there is nothing which is so much cal- 
culated to subdue the will, and to produce an irresistible obedience to 
the laws, as the knowledge that they are imposed by an authority 
which has the only legitimate title to command. This alone, is an 
immense advantage to society : so that even admitting that public 
affairs are not, in every particular instance, conducted with as much 
judgment and discretion as we could desire ; yet if, on the average, 
they are characterized by more prudence, and good sense, a greater 
deference to the public weal than is discoverable in other governments, 
we may even afford to prize the flaw in the system, for the sake of its 
general utility. Montesquieu said, if the press were established in 
Constantinople, it would diffuse light even in that region. And it 
has actually done so ; and I observe that every enlargement of the 
electoral franchise in Great Britain has had no other effect than to 
produce a greater degree of public tranquility. Invariably the intro- 
duction of free institutions, if it does not find a people already pre- 
pared for self-government, will in no long time render them so. 

The general communication of the electoral privilege banishes the 
distinction of patricians and plebeians — a distinction which is quick in 
making its appearance, whenever it has any root in the laws. All 
the parts of society are thus combined into one firm and compact 
whole, and the strength and prosperity of the entire nation are pro- 



CHAP. V.] 



OF FREE INSTITUTIONS. 



69 



portionally augmented. On the other hand, where the right is very 
much restricted, two forces in the state are placed in opposition to 
each other: the legal and the natural majority; the one conscious of 
right, the other of power. The country is then sure to be torn Tby 
intestine divisions — divisions not created by a difference of opinion 
as to the ordinary measures of administration, which may follow one 
direction or another, without much affecting the public welfare; but 
divisions which are of fundamental import, as pertaining to the rights 
of the people, and the prerogatives of the government. It is not 
surprising, therefore, that even the extreme into which the people 
of the United States have run, of introducing universal suffrage, or 
nearly so, so far from destroying the public happiness, as was pre- 
dicted, has been chiefly instrumental in promoting it. The natural 
and the legal majority being rendered identical, the surface of society 
is frequently ruffled, but the existence of the institution is no longer 
jeopardized. 

Third. It is a striking characteristic of human nature, that what- 
ever is rendered common and familiar, loses on that very account its 
power over the imagination. Our feelings may be ever so much 
interested in the pursuit of an object, yet no sooner is it fairly attained 
than the charm of novelty begins to subside. The mind which was 
before tossed by contrary hopes and fears, recovers its composure, 
and a state approaching even to indifference sometimes succeeds to 
one of excitement. This is as true in the world of politics as in any 
other human concern. The same hopes and affections are set in 
motion in both, and they are liable therefore to be raised and depressed 
by the same causes. A privilege which, before it was granted was 
viewed as a mark of distinction, is deprived of a good deal of its 
attraction, when it is shared by millions. 

The European governments discover the greatest alarm, and the 
most unreasonable timidity, whenever the subject of popular rights is 
touched. But we are not authorized to believe that there is so much 
danger to the political institutions from that quarter, when there is 
the fact staring us in the face, and which no one can gainsay, that 
those governments which have extended the sphere of popular rights 
the farthest, are the best administered, and are at the same time 
favored with the greatest degree of public tranquility. I would say 
to all those governments, if you are afraid of the temper and dispo- 



70 



NATURE AND TENDENCY 



[book /. 



sition of a people which is fast growing into manhood — if you feel 
alarmed at the intelligence and consequent weight which the people 
are every where acquiring, make haste to avert the mischiefs which 
are brooding over society, by imparting to them as large an amount 
of freedom as is practicable. Make what is now a privilege and 
distinction, the common property of a great number ; it will then 
become cheap, common, and familiar. A state of popular excitement 
will not be perpetually kept up, and society will in no long time 
accommodate itself to the change. There is no difference, by nature, 
between Americans and the people of other countries; seeing that 
the former were themselves Europeans originally. Their institutions 
have made them what they now are. 

The electoral franchise has effected this important revolution in 
human affairs. Public measures are no longer decided upon the field 
of battle ; hostile armies are now converted into political parties ; and 
military captains into civil leaders. Changes in the public adminis- 
tration, which years of civil war were unable to accomplish, are now 
brought about, silently, and imperceptibly, by the agency of the 
ballot box. If few are aware of the value of the mighty change 
which has taken place, or even of its existence, it is in consequence 
of causes to which I have already referred. Men cease to be moved 
by what has become the settled order of society. 

But there is another benefit, which the general possession of the 
privilege will confer. A people who enjoy a long period of uninter- 
rupted prosperity, are apt to become slothful and effeminate. The 
exercise of political privileges, by opening an arena for the operation 
of parties on the largest possible scale, keeps the minds of men in 
constant activity, and wards off the approach of that listlessness and 
decay, which have hitherto been the bane of society, when it has 
attained a very high civilization. 

There is this advantage from founding government upon the will of 
the majority; that if alterations are afterward found expedient, they 
will all originate with the same power. It is possible, that at some 
distant period, the public weal in the United States may require 
some modification of the right of suffrage. The true maxim in a 
republic is, that every right should be placed in subordination to the 
general welfare. If then the right is ever restricted, the change will 
be attended by this important advantage. It will be brought about 



CHAP. V.] 



OF FREE INSTITUTIONS. 



71 



with the consent of a majority of the people. This differs the insti- 
tution fundamentally from what it is any where else. It is not the 
mere abstract limitation of the right which is to be complained of. 
For none but males are now admitted; and as to them, the age of 
twenty-one is arbitrarily fixed upon as the commencement of the 
right. It is the restriction of the privilege by a section of the com- 
munity (as in the European governments), which constitutes the 
chief ground of objection. It is remarkable, that the Americans 
have constantly adhered to the principle, that some other qualification 
than mere citizenship, or residence, is necessary in municipal elections. 
A property qualification of some kind, is uniformly imposed in this 
instance. This is not only the case in the large cities; it is the gen- 
eral rule in all the smaller towns which are scattered over the country. 
If therefore it shall ever be deemed wise to impose a limitation upon 
the right of voting at the general elections, the transition will not be 
a violent one. It will simply be the application of a principle in one 
form, to which, in another, the public is already habituated. Doubt- 
less the qualification exacted at all charter elections interferes as 
much with the abstract principle of equal rights, as would a similar 
restriction imposed upon the general voter. Yet there is, at present, 
a very general conviction of the propriety of the rule in the former 
case. 

As to the mode of collecting the suffrages of the people, whether 
it should be "viva voce," or by ballot, I do not believe that the 
question is of so much importance as is generally supposed. In the 
early history of most communities, the former was probably the 
practise. But this was owing to the inability to write, rather than 
to the simplicity of the manners. It is rarely a secret how any one 
votes, when the election is by ballot. Free institutions throw open 
the windows of society so wide, as to unveil all political transactions. 
In the United States, the vote of every elector in a county has been 
sometimes calculated with absolute precision before hand. Cicero 
laments the disuse of the "viva voce" vote in his time. But in a 
period of deep gloom and adversity, such as existed when he wrote, 
the mind which is laboring under its depressing influence will lay 
hold of any circumstance, to give color to its apprehensions. The 
ballot does not render the vote of any one a secret; while at the 
same time, it has this eminent advantage, that an election becomes 



72 



NATURE AND TENDENCY 



[book C 



less noisy and tumultuous in consequence. It is made to resemble 
the quiet and orderly transaction of private business. 

When the electors are very numerous, it is fortunately impracti- 
cable to organize them on the plan adopted in France. There the 
electors form themselves into what are denominated colleges, into 
which no one not privileged to vote is admitted. The elections are 
thus freed from violence ; but they are shrouded in darkness, and are 
therefore subjected to the most sinister influence. Until 1830, the 
presidents of these colleges were nominated by the king — a circum- 
stance which was understood to give them a decided advantage, if 
they were themselves candidates: so sadly does a monarchical 
government disfigure free institutions, whenever it attempts to imitate 
them. 

The intermediate vote has been a favorite with some very able 
writers. Mr. Hume proposes it in his plan of a republic. The experi- 
ment has been made in France, on a more extended scale than was 
ever attempted in any other country. At one time, two intermediate 
bodies were interposed between the primary electors and the candi- 
dates : so that three successive elections, by as many different bodies, 
each diminishing in number, were necessary to the election of the 
legislative body. The whole plan however was abandoned in 1817. 
In the United States, a scheme in some respects similar, has been 
adopted in the election of the president, and senators ; and in most of the 
state governments, in the election of judges, and a few of the admin- 
istratrative officers. But in France, not only were members of the 
legislature elected by the intermediate vote, but what was infinitely 
worse, the electoral colleges who chose them were constituted for 
life. The small number of persons composing them, together with 
the permanent tenure of their office, rendered those colleges mere 
aristocratic bodies. 

The election laws of France were at one time disfigured by 
another deformity. All those who paid a certain amount of taxes, 
seven hundred francs I think, were entitled to vote twice. In Great 
Britain, the double, and even the triple vote is allowed : but it stands 
on a slightly different footing. In France, the same elector might 
vote twice for a member of the chamber of deputies. In Great Bri- 
tain, the same elector cannot vote twice in the same county ; but he 
may vote in different counties, if he has land of sufficient value in 



CHAP. V.] 



OF FREE INSTITUTIONS. 



73 



each.. He may vote twice, and even oftener, for different members of 
the house of commons. All such schemes are entirely inconsistent 
with the genuine spirit of free institutions : and only serve to stave 
off, or to hasten the day, which sooner or later will come, when a more 
just system will be established. Indeed, in France the plan has al- 
ready been established. In Great Britain it stands, notwithstanding 
the reform act of 1832. 

It is a most valuable provision in the American laws, that the 
elections are held in the townships, or parishes. This contributes 
mightily to break the force of party spirit. The plan has been 
recently imitated in Great Britain. Formerly, the elections were 
held at but one place in each county. It is now held at several 
places. A similar arrangement has also been adopted in France. 
Instead of the elections being held by departments, they are held in 
the smaller subdivision of " arrondissements." The British and French 
plans are still imperfect. The American is thorough, and goes di- 
rectly to its object. In Europe, the plan is to diminish the number 
of electors, instead of multiplying the places of election. 

There is another difference between the British, and French, and 
the American elections. In Great Britain the polls were kept open 
for an indefinite period. In the celebrated Westminster election, 
when Mr. Fox lost his seat, they were open for six weeks ; and were 
then closed only because the session of parliament commenced. The 
period is now restricted to one day in cities and boroughs, and to 
two in counties. In France, an election continues six days. In 
America, the polls are generally closed in one day, and nothing is 
more remarkable than the universal calm which immediately succeeds 
The elections in America may be said to exhibit the extraordinary 
spectacle of prodigious excitement, in the midst of the profoundest 
tranquility. 



74 



NATURE AND TENDENCY 



[book I. 



CHAPTER VI. 

THE ELECTION OF THE PUBLIC OFFICERS. 

There is one property peculiar to representative governments, 
which I do not remember to have seen noticed. It doubles the 
responsibility of the public agents. The persons who are elected to 
office feel a general responsibility in common with their constituents ; 
because the interests of both are substantially the same, and they feel 
an additional responsibility, in consequence of the station which they 
are selected to fill. An association of individuals, acting in common 
for their mutual advantage, are compelled to listen to some other 
motives than self interest; otherwise it would not be true that they 
acted in common. But the moment it is decided that all public 
measures shall be managed by deputies, instead of by the people in 
person, a new and very important element is introduced into the gov- 
ernment. The incentives to good conduct on the part of the repre- 
sentative are increased. The very self interest, which before stood 
in the way of each one acting effectually for the public good, is 
made to operate advantageously upon the officer. He is no longer 
confounded with the crowd. He stands out to public view as one 
selected to discharge important duties. His constituents expect some- 
thing more from him, than they do from themselves ; and his conduct 
is obliged to be more prudent and circumspect than it would other- 
wise be. 

The corrupting influence of office has often been taken notice of. 
But it may be made to have a directly opposite effect. I have in 
repeated instances known individuals to make use of untiring efforts 
to obtain some public trust, the duties of which consisted in the most 
laborious drudgery — in the performance of a mere round of clerical 
duties; and I have observed them closely, after their object was 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



75 



attained. To see the singleness of purpose, and the indefatigable 
industry, which they applied to their new occupation, one would sup- 
pose that they had made discovery of some inexhaustible source of 
enjoyment, which was unknown to any one else. Before they were 
chosen, their conduct seemed to be without any definite aim. It was 
a bundle of expedients ; not a system of action. They were not only 
not distinguished for intelligence, industry, or sobriety of demeanor ; 
but seemed to be absolutely deficient in all. As soon as the public 
confidence was held out to them, all these qualities were suddenly 
waked up, and they were transformed into active and valuable citi- 
zens. In most countries, the greater part of these individuals would 
have been cut off from all opportunity of obtaining office. They 
would have occupied the place of passive citizens merely; and not 
even have been admitted to the exercise of the electoral franchise. 
Thus, the extreme liberty which representative government imparts 
to the population, carries along with it its own corrective. Of all 
governments it is the one which creates, if I may use the expression, 
the greatest amount of business transactions ; and it is, therefore, the 
one which demands the greatest amount of business talent, and 
industry. 

It is very true that the separate interest which a public officer feels 
in the emolument and influence which office bestows, may be so much 
enhanced, as entirely to outweigh the interest which he has in the 
public welfare. The way to cure this defect is to distribute power as 
widely as possible ; to assign moderate salaries to every place, and to 
limit the duration of office. The distribution of power, by calling 
into requisition the abilities of a large proportion of the population, 
prevents any one from acquiring undue influence: and by joining 
effective labor to almost every public employment, identifies the inter- 
ests of the public with those of the officer. 

The ancients never made a full discovery of the principle of repre- 
sentation ; and, accordingly, their application of it was very feeble. 
The Roman commonwealth had recourse to another principle in the 
constitution of its legislative assemblies. Men were arranged into 
distinct orders; and the votes were taken by classes, instead of "per 
capita." 

Thus where a modern republic is chiefly intent on melting down 
the inequalities of different parts of the society, by establishing the 



7G 



NATURE AND TENDENCY 



[book e* 



principle of representation, an ancient republic endeavored to per- 
petuate them by giving them full play. There is hardly an instance 
in antiquity, of a legislative body which was elected. The senate of 
Athens may be an exception, though that is a question which is 
involved in great obscurity. In the Roman commonwealth, the 
comitia of the centuries, and of the tribes, constituted, at successive 
periods, the real legislature. The senate was regarded in the light 
of an executive magistracy, and the members who composed it, 
although they were elected by the people, during the latter half of 
the republic, were not elected to the senate. They had previously 
been chosen to some other office, and by virtue of this choice became 
senators for life. 

The elective principle, however, was thoroughly practiced upon in 
framing the executive department. In the modern European states, 
the rule is reversed. The legislature, or one chamber, is elected, 
while the executive is an hereditary magistrate, and the judicial and 
all the subordinate administrative officers are appointed by him. The 
United States is the only country where the principle of representa- 
tion has been introduced into every department of the government. 

A property qualification for office has been retained in some of the 
American states, even where it has been abolished in regard to the 
electors. In the Athenian constitution, this species of qualification 
was at one period dispensed with, except where the office involved a 
pecuniary responsibility. In the United States, the rule is reversed. 
Property qualification is in some states required, to entitle to a seat 
in the legislative body, when it is not demanded of the administrative 
officers. But in the place of that qualification, another requisite, 
much more effectual, is substituted. The officer must give security 
for his fidelity in office. This reconciles the claims of the rich and 
the poor, and at the same time attracts to the public service the 
talents and industry of all orders of men. 

In England, knights of the shire originally represented the coun- 
ties, in the house of commons. They were the lesser barons — in other 
words, an inferior order of nobility. And although this chamber is 
no longer modeled upon that plan, a property qualification is still 
required of candidates. But, by the act of 1838, this may be either 
of personal or real property. 

It is a great objection to a high property qualification, that it con- 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



77 



fines the competition for office to the rich exclusively. The rich only 
can afford to practice bribery ; and hence the English elections have 
been corrupt to a degree utterly unknown in the United States. 
Thus, this remarkable consequence, and one not at all calculated 
upon, has taken place, that in those countries where the eligibility to 
office, as well as the electoral franchise, have been most restricted, 
the greatest corruption and licentiousness have prevailed ; and where 
both have been thrown open to nearly the whole population, the 
elections are the most orderly, and the most free from sinister influ- 
ence. The rich will forever put forth the lower qualities of human 
nature, unless they are controlled by those who are placed in circum- 
stances of less temptation. A rich man going to attend an election 
where none but rich men can elect, or be elected, is like the twenty 
thousand nobles who used to march upon Warsaw to choose a chief 
magistrate. The extreme variety which characterizes the pursuits of 
the Americans, the diffusion of education, the unobstructed intercourse 
of all classes, and above all, the operation of the institutions them- 
selves, disperse knowledge in every direction, and render the property 
qualification useless. 

The duration of the term of office is a matter of still graver consid- 
eration. It is indispensable to the faithful administration of the 
government, that responsibility should be a vital and active principle, 
not a mere form. And the only way to accomplish this is by guarding 
against a too permanent tenure of office. Those are the wisest 
institutions which render it the interest of the officer to consult the 
public good. A system which succeeds in reconciling these two 
apparently contradictory things, is well calculated to beget habits of 
rectitude and good conduct, which a mere conviction of the propriety 
of such habits would be insufficient to instill. And it then becomes 
as difficult to lay down these habits as it was originally to take them 
up. Doubtless there is an intrinsic connection between morality and 
self interest. All the seeming exceptions to this rule arise either 
from some disturbing influence to the conduct of the individual who 
is called upon to act, and to which he is not a party, or else they arise 
from self interest not being properly understood. That scheme of 
government, therefore, which endeavors as well as it can to combine 
duty with interest, conforms best to the original design of our nature, 
and tends greatly to the preservation of public morality. 



78 



NATURE AND TENDENCY 



[book I. 



It may be supposed, if the duration of office is short, that it will 
lead to instability in the public councils. But there is such a thing as 
too great stability, as well as too great instability, in government. 
This may seem to be a paradox, and therefore requires explanation. 
A government, in order to pursue any plan of public policy with 
constancy and vigor, must be invested with power. But power is of 
two kinds, personal and political, and the last may be raised to so 
high a degree as to be transformed into the former — to become, in 
other words, a mere personal authority in the chief of the state. 
Nevertheless all public measures will be characterized by the greatest 
stability and uniformity. There is more simplicity in the manage- 
ment of public affairs, fewer cross purposes to overcome, where 
government is at liberty to consult its own separate interests, than 
where it is employed in administering the vast and complicated 
interests of a free and intelligent people. In one sense the govern- 
ments of Russia, Prussia, and Austria, possess this property of 
stability in a pre-eminent degree. The monarchs of these countries 
wield an independent authority. No obstacle stands in the way of 
their designs so long as they keep within tolerably reasonable bounds. 
There is a singleness of plan, an unity of purpose, belonging to such 
governments, which cannot in the nature' of things be possessed by 
one into which the popular element is infused. Thus in Great 
Britain, where the political power of the community is shared to a 
considerable extent by representatives of the people, public measures 
vary more than they do in the governments of eastern Europe. And 
yet, in another and still higher sense of the word, the government of 
Great Britain does undoubtedly possess more stability than any 
European government of ancient or modern times. The stability of 
power and the stability of the government are, therefore, by no means 
the same thing. The changes of administration, and the changes of 
public men, in Great Britain and the United States, are more frequent 
than any where else, and yet the institutions possess greater stability 
than do those of any other country ; and they possess it in conse- 
quence of and not in spite of these changes. 

The enjoyment of an independent authority, by public rulers, has 
been the principal incentive to all the criminal enterprizes which have 
ever afflicted society. From time immemorial, power has been firmly 
secured in the kings and nobility, who have ruled the European 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



79 



states; aijd the consequence is, that from the christian era, down to 
the peace of 1815, Europe was the theater of the most atrocious 
and sanguinary wars. Since this last period, the popular power, {he 
real effective public opinion in Great Britain, has at least doubled. 
The public weal has therefore greater firmness and consistency, not- 
withstanding the changes of administration have been more frequent 
than before. If the President of the United States, and the members 
of the senate, were hereditary officers, and the house of representa- 
tives elected for a long term, it is more than probable that America 
would have embarked in frequent wars, when experience has demon- 
strated that the prosperity of the country requires that peace should 
be its permanent policy. And the vigor with which warlike enter- 
prizes would have been prosecuted, would have impressed upon the 
government precisely that character of stability which is' so much 
.admired by unthinking individuals. A system which was even pro- 
ductive of considerable instability in the ordinary measures of govern- 
ment, would be greatly preferable to this. It would protect the state 
from infinitely worse mischiefs. The Americans, like most people who 
enjoy an uncommon share of prosperity, frequently complain of the 
fluctuation in the public measures. They complain, because they are 
not able to grasp all the minor as well as the more important advan- 
tages of fortune. 

The compensation afforded to the public officers should be sufficient 
to insure competent ability, and should not go beyond this. High 
salaries create a separate interest in the office, independent of the 
interests of the people. On the other hand, low salaries render officers 
careless in the discharge of their duties, and the people, themselves, 
become gradually reconciled to a feeble and bungling administration 
of the laws, when they know that the reproach lies at their own door. 
The legislator therefore must have sufficient judgment to strike a 
mean between the two things. Moderate salaries are one means of 
enforcing responsibility. And as this is the hinge on which free 
institutions turn, it is fit that we should avail ourselves of every 
device which is calculated to give strength to it. Moreover, moderate 
salaries enlist in the service of the state the abilities of persons in 
the middle walks of life. As the rich can best afford to dispense with 
a high reward, it might be supposed that this plan would cause them 
to be the principal candidates for office. But such is not the case. 



so 



NATURE AND TENDENCY 



[book l 



Moderate salaries chill and enfeeble their ambition ; they do not gratify 
the ardent and impatient desires of the rich. But they contribute to 
raise solid usefulness from obscurity, and the officer who obtains an 
important post, finds himself disabled in every effort he makes to leap 
beyond the bounds of his legitimate authority. In the United States, 
far the greater part of all public employments are filled by men in 
moderate circumstances. 

The number, as well as the nature, of the public offices in a republic, 
will depend upon the fact, whether it constitutes one aggregate com- 
munity, or has the form of a confederate government. I say the 
form, because in every extensive and populous state, it would be of 
the highest advantage to imitate the plan of domestic, or local juris- 
dictions, even though the government is not composed of states which 
were originally distinct and independent. 

A territorial division of the state, of some sort, is an arrangement 
known to every civilized nation. Even the most centralized govern- 
ment cannot dispense with it, since it is the only way by which the public 
authority can be present every where at the same time. The prin- 
ciple on which the division was originally founded was very different 
from what it is now. Most of the European states were at one time 
divided into feudal baronies. These inferior governments have long 
since disappeared. They are now merged into consolidated govern- 
ments. But other divisions have been substituted in their place, 
whether known as departments, circles, or shires. These districts 
sometimes occupy the same ground which was once marked out as 
the domain of a feudal sovereignty. Accident has determined their 
extent, but not their use. When the authority of the central govern- 
ment was feeble, these inferior jurisdictions usurped nearly all power. 
Now that that authority is strong, they serve to convey it through all 
parts of the country. 

But the principle on which this division depends is very different 
in different countries, even at the present day. In some the power 
which is set in motion in these smaller compartments flows from the 
central government as its source. In others the central authority is 
itself the creature of the lesser governments, and these continue, after 
the establishment of the former, to exercise a larger share of the 
power which originally belonged to them. The United States afford 
the most perfect example of this plan. Accidental circumstances 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



81 



gave rise to it. The states were independent sovereignties when the 
federal constitution was formed; so that this precise arrangement 
cannot be adopted where all the parts of society are melted into one 
homogeneous community. But there is no more interesting problem 
in government than to determine how far it is practicable to introduce 
the principle of the plan into all communities, no matter whether they 
have the confederate form or not. Not merely because this arrange- 
ment leads to a more convenient and efficient administration of public 
affairs, but because it is doubtful whether the maintenance of free 
institutions in any state of considerable extent does not absolutely 
depend upon it. The establishment of local jurisdictions gives a new 
direction to the whole course of legislation. Civil government is only 
a generalization of the principles on which the affairs of society are 
conducted. But generalization may be pushed to such an extent as 
to make us lose sight of very important interests which, although they 
are themselves capable of generalization, are yet incapable of being 
ranged under the same class. By effecting a separation of those 
interests which are common to the whole society, from those which are 
local or sectional, these last are brought distinctly into view — they are 
forced upon the public attention. 

In most countries legislators have occupied themselves exclusively 
with those large and ponderous questions which further the aggran- 
dizement of the nation rather than its solid prosperity. Even the 
emperor Charlemange was impressed with this fact, and gave vent to 
the frank declaration, that it was impossible for one central govern- 
ment to superintend the affairs of an extensive community. Princes 
are forward enough to tell the truth when they are not placed in a 
situation which obliges them to act upon it. But what was true 
during so early a period as the ninth century, when society was every 
where in a rude condition, must be still more true in the nineteenth 
century. For the affairs of every civilized state have become so 
complicated, and so minute, that they cannot be administered with the 
requisite skill and ability by a central legislature merely. Convenience 
alone would suggest the propriety of a territorial division, and the 
creation of domestic jurisdictions, if not as extensive as those of 
Scotland and Ireland before their union with England, yet much more 
so than the departments of France. 

But what at first may be a rule of convenience leads directly to 



82 



NATURE AND TENDENCY 



[book I. 



consequences of still greater importance. It lays the foundation of 
the great principle of the distribution of power, and reconciles 
two apparently opposite qualities — popular freedom, with vigor and 
efficiency in the government. No matter how popular the mode of 
electing the public officers is, yet if in the United States there were 
no domestic jurisdictions to preside over the local interests, the 
government would be republican in form only. 

I know nothing which is more calculated to arrest the attention of 
the philosophical inquirer, as well as of the lover of freedom, than the 
new character which has been impressed upon the business of legis- 
lation in the United States. The state governments are confined 
exclusively to the care of the local interests; and this complete 
sequestration of those interests, from every thing which appertains to 
the national administration, causes them to be more thoroughly stu- 
died and appreciated than could otherwise possibly be the case. 
There is no security that legislation will be for the people, unless it is 
by and through the people. Nor any security that it will be by and 
through the people, unless the subjects of legislation are brought so 
near as to be matter of immediate interest and constant observation. 

The legislatures of the American states have applied themselves 
more diligently and effectively to the care of the substantial interests 
of the people, than it has been in the power of a single legislature in 
any other country to do. If there is ground of complaint, it is in 
consequence of the excess of legislation. But it is impossible to have 
enough of any good thing, without having a superfluity. Experience, 
which becomes a great instructor, wherever the system of representa- 
tion is thoroughly introduced, will assuredly correct this defect. 

We will suppose that, on an average, one month will be sufficient for 
the legislative sessions of the states ; and that five months will be 
consumed by the national legislature. Thirty-four months then are 
required, in order to legislate advantageously for the national and 
domestic interests; a period nearly three times the length of the 
year. In Great Britain, with a population considerably larger than 
that of the United States, parliament sits on an average only six 
months. If we make a further allowance for the unnecessary con- 
sumption of time by the American legislature, and for the fact, that 
the United States is in a state of greater progress than any other 
country, it is still evident that the time employed by the British 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



83 



legislature is altogether too short to permit of an effective adminis- 
tration of the public interests in the sense in which the term is now 
understood. If the country were more extensive, and the population 
greater, six months would still seem sufficient. Necessity would 
compress the immense mass of public business into that short space ; 
and the public mind would become habituated to it as the natural and 
reasonable period. The defect arises from having a single legislature 
to preside over the interests of twenty- seven millions of people. Nor 
will the defect ever be apparent, so long as the system continues to 
exist. The human mind possesses a wonderful ductility in accom- 
modating itself to any set of habits which have been fastened upon 
it. Thirty years ago the American people were thoroughly persuaded 
that they got along well enough without canals, and without the 
employment of steam, by land or water. And it was with the great- 
est reluctance that they embarked in the plan of internal improve- 
ments. The first project of a canal, on an extensive scale, was 
literally carried through the legislature by storm, amid the most 
virulent and formidable opposition. And it is not improbable, if the 
position in which the American states were placed after the revolu- 
tion had not given rise to the confederate form of government, that 
the public would have been completely reconciled to the establish- 
ment of a single legislature, where thirty now exist. 

There is nothing peculiar to America rendering so much more time 
necessary to the successful administration of the public business than 
in any other highly civilized community, unless it is the single circum- 
stance of its free institutions. For although society is in a state of 
progression, yet it is so only in consequence of these institutions. 
There is no country which contains more wealth, a more thorough 
civilization, and more general intelligence. It is then in the condition 
of one of the oldest, instead of one of the newest, nations on the earth. 
And it may be said, with great truth, that there is more room for 
progress and improvement in every state of continental Europe, if 
there were only the ability and opportunity to set it in motion. In 
Russia and Denmark, the legislative body is nothing more than a 
council nominated by ,the king. No doubt these councils seem to 
transact all the requisite business, and the machinery of government 
goes on regularly from year to year, without any great feeling of 
inconvenience. Nevertheless the disproportion, in point of efficiency, 



84 NATURE AND TENDENCY [book r. 

between those mock legislative bodies and the British parliament, is 
nearly as great as between the last and the combined legislatures of 
the United States. 

There may be an inconsistency in erecting a government for one 
aggregate community, and then morseling the public authority by 
distributing it among a number of lesser governments. There is no 
inconsistency, however, if the plan is the result of the natural economy 
of society. The principle on which it is founded may be discerned 
every where, even in those governments where it is intended that the 
national power should be the most firmly consolidated. The depart- 
ments of France, the corporate cities of Great Britain, are in reality 
lesser governments, inclosed within a supreme government. And the 
only question is, whether the principle may not be advantageously 
pursued much further, wherever constitutional government exists, 
without reference to the fact, whether the state is one, or is composed 
of distinct members. 

A people who constitute an undivided community, would possess 
this advantage over the plan adopted in the United States: that the 
creation of domestic jurisdictions, being the act of the whole, instead 
of the parts, there would be less danger that they would exercise a 
disturbing influence upon the central authority. One is so much 
accustomed to consider the American government as a system "sui 
generis," as deriving its meaning and utility from the originally inde- 
pendent existence of the parts, that it is supposed no system bearing 
an analogy to it is practicable in any other community. The mind is 
so habituated to consider cause and effect in the precise order in 
which they first presented themselves, that it becomes difficult to 
break through the association, and to make application of our expe- 
rience, where the principle is the same, and the collateral circum- 
stances only are different. 

It is plain enough, that the independent character of the states 
could not be preserved, if they had not power to superintend the 
domestic interests. But these interests do not acquire the character 
of domestic ones, in consequence of the federal form of the govern- 
ment. The same reasons for regarding them in that light would have 
existed, if no such government had been created. In other words, if 
the American commonwealth had originally constituted one homo- 
geneous community, the central authority would have been entirely 



CHAP VI.] 



OF FREE INSTITUTIONS. 



85 



inadequate to the management of them, unless powers not exactly 
the same, but resembling those which now exist, were distributed 
among a set of local jurisdictions. The effect of the progress of civil- 
ization is not to diminish, but to increase immeasurably, the whole 
business of society; and unless this is skillfully and judiciously divided 
among a class of lesser governments, the institutions, however care- 
fully modeled at first, must ultimately sink beneath the immense 
power condensed in a single government. The example then which 
America holds out is chiefly valuable, not because it proves the utility 
of the confederate form of government; but because it teaches us, 
that in order to maintain free institutions in their true spirit, it is 
necessary to make an extensive distribution of the powers of society ; 
and that without any regard to the circumstances which gave rise to 
the formation of the government. It presents a great problem in 
political philosophy, and not merely an incidental question in the his- 
tory of one particular set of institutions. 

Even in the consolidated government of France, long after the ex- 
tinction of its feudal sovereignties, as late indeed as the reign of 
Louis XV, a plan, in many respects resembling the American, once 
prevailed. The provincial legislatures, or particular estates, as they 
were called, to distinguish them from the general estates, or national 
congress, possessed very considerable local powers. Independently of 
the inferior civilization of France when compared with that of the 
United States, at the period when this system existed, and which 
necessarily prevented it from working any thing like as well, there 
were several vices attendant upon it. It is only necessary to refer to 
two : 1st, The very imperfect responsibility of the deputies to those 
provincial legislatures to their constituents. 2d, The power which 
they acquired, after the abolition of the states general, if, indeed 
they did not exercise it before, of granting supplies for the whole 
kingdom, and not merely such as were necessary to defray the ex- 
penses of the provincial governments. 

The same plan of local governments existed in the ten Flemish 
provinces, when they were a part of the Austrian empire ; and it is 
even more firmly established in both the Dutch and Belgian monarch- 
ies, notwithstanding the limited territory of each of them. That the 
system in these two last instances does not perform its movements 
with any thing like the same precision as in the United States, is not 



86 



NATURE AND TENDENCY 



[book r. 



the fault of the system, but arises from a defective basis of repre- 
sentation, and from the imperfect responsibility of the provincial 
officers to the local population. 

There is no foundation for the opinion that the existence of these 
domestic jurisdictions weakens the force of the central authority. 
On the contrary, this last is less embarrassed in the administration of 
the national interests. That the formation of a system of lesser 
governments constitutes a deduction from the whole mass of powers, 
which would otherwise be deposited with the central government, is 
evident. For that is precisely the purpose for which they are cre- 
ated. But as the sphere within which the former moves is distinctly 
defined, and the duties allotted to it are more simple than before, it is 
enabled to act with more promptitude and energy. Like the man 
who is intent on accomplishing some important design, and whose 
attention is distracted by a variety of other pursuits, by ridding 
himself of all care for the last, he can prosecute the former without 
interruption. 

A central government, armed with extensive powers, stands much 
more in need of checks, than of provocatives, to the exercise of its 
authority. And if the establishment of local jurisdictions gives 
greater force to public opinion, and raises up obstacles to the exertion 
of too much power, it is not the less valuable on that account. I 
have heard many persons express admiration of the wonderful energy 
with which the British government prosecuted the wars which grew 
out of the French revolution. But if the expense had been defrayed 
by taxes, and loans not resorted to, the peojjle would have seen that 
their substantial interests were placed in direct opposition to the 
enterprises of the government. It was only because this fact was 
hidden from their view, that those wars were sustained with such 
amazing enthusiasm. The just fear of unpopularity would have pre- 
vented public men from embarking in such an unnecessary contest. 
And although this fear would have been regarded by some persons of 
very high notions as crippling the power of the government, yet it 
would only have crippled it in order to make the people strong. The 
same obstacle has constantly existed to the prosecution of similar 
enterprises by the American government, and the simple effect has 
been to accelerate the national power and prosperity to a degree 
absolutely unprecedented. And yet in a necessary war, there is no 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



87 



government which would be supported with so much enthusiasm, and 
would put forth so much power, as that of the United States. But 
more than ninety-nine out of a hundred of the wars which have 
ever taken place, have been unjust and unprofitable wars. And if 
the machinery of a system of local governments contributes indirectly 
to diffuse the popular will through every part of the country, and 
disarms the central government of the power to do mischief, it is not 
the less deserving of our admiration on that account. 

But there is another view of the great advantages of that system, 
which is not apt to be thought of : The maintenance of the public 
authority at home — the inculcating a general obedience to the laws, 
is the principal object — the final aim indeed — of civil government. If 
that is attained, every thing else will go right. But the system of 
local governments contributes directly to the promotion of this end. 
It brings the authority of the laws nearer to every one. The gov- 
ernment which undertakes to preserve order is not removed to a 
great distance — is not regarded with an unfriendly eye — as if it 
were constantly intermeddling with the interests of a people with whom 
it had no direct sympathy. On the contrary, each individual feels as 
if he were surrounded by an authority, in the creation of which he 
himself bore a part, and which yet, some how or other, is more vigi- 
lant, and active, and imperative, than any other. 

Thus, as the family and the school train men in order to turn them 
out in the world afterward, so the domestic governments create a 
species of moral discipline on a still more extended scale. They 
educate their own people to obedience to the laws, and then deliver 
them over to the national government. The authority of the last 
instead of being weakened is redoubled by this preparatory discipline. 

Another advantage of the plan of local governments is, that it pre- 
vents geographical parties from exerting an inordinate influence in 
the national councils. These parties will inevitably make their 
appearance in every country of considerable extent. It is not desi- 
rable to extinguish them, but only to place them at a distance, where 
their reasonings will be heard, and their passions not felt. By 
creating local jurisdictions, geographical parties are inclosed within 
geographical limits, and are not brought into eternal collision at the 
heart of the government. Although such parties are actually found 
on the floor of the American congress, yet if the state governments 



4 



88 



NATURE AND TENDENCY 



[book I. 



did not exist, they would have displayed a front infinitely more for- 
midable; and would either have jeopardized the integrity of the 
union, or the existence of free institutions. At present a vast 
amount of legislative power is withdrawn from the national assembly, 
and circumscribed within bounds so clearly defined, as to be not only 
harmless, but to produce a skillfull, and orderly administration of the 
public interests. Although Great Britain is of very small extent 
when compared with the United States, yet if, when the Scotch union 
took place, and a compact had not been found, securing to Scotland 
its ecclesiastical and civil institutions forever, geographical parties 
would instantly have appeared, and would have had an influence fatal 
to the public prosperity. Although the separate legislature of Scot- 
land was abolished, the effect of the union was to declare all its 
former acts to be permanent ; and thus to compel all future legislation 
to take a direction conformable to them. It was the next thing to 
perpetuating the existence of the Scotch parliament. For want of 
this wise precaution, when the union with Ireland took place, a for- 
midable geographical party has been kept alive in that island, to the 
great annoyance of the peace of both countries; and producing 
heart burnings which never can be cured, until England consents, or is 
compelled, to be just to Ireland. 

What amount of power should be deposited with the local jurisdic- 
tions, where the confederate form of government is not established, is 
a question as novel as it is interesting. Doubtless, it would be 
necessary to adopt some medium between the comprehensive legisla- 
tion of the American states, and the meager authority which is 
exercised by the French departments. The American states are 
complete governments within themselves, having unlimited power of 
taxation, except as to imposts on commerce, with an authority equally 
extensive over the whole field of civil and criminal jurisprudence. 
Education, private and public corporations, internal improvements, 
all lie within the scope of their jurisdiction. They have a written 
constitution, a regular legislative assembly, an executive magistrate, 
and a corps of administrative officers, together with a judicial system 
unsurpassed by that of any other country. No one would desire to 
make any alteration in this admirable plan of government, for it has 
not only contributed to a most wise administration of public affairs : 
it has done more, it has hastened the march of civilization. If it were 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



89 



impossible, in the case of a consolidated republic, to obtain the me- 
dium I have suggested, it would be better to adopt this system. But 
that there is such a medium is clear from the examples I have re- 
ferred to, of the particular estates of France, and the provincial 
legislatures in the Belgian and Butch governments ; examples which, 
however imperfect, are nevertheless highly instructive, inasmuch as 
they present the existence of the system in monarchical governments, 
to which they are much less adapted than to countries where free 
institutions prevail. It is clear also, from the various plans which 
were proposed in the convention which framed the American constitu- 
tion ; some'of which seem to have proceeded upon the idea, that the 
United States composed one aggregate community, and were modeled 
upon the hypothesis. 

A certain number of deputies then will be sent to the national, and 
to each of the local, legislatures. As regards the first, shall the whole 
country constitute one electoral district, or shall each of the local 
divisions compose one, the people voting by general ticket ; or shall 
these divisions be subdivided into districts, each containing the popu- 
lation which entitles it to one member. The first plan may be 
dismissed as absurd. It has never been thought of, even in those 
European monarchies where the principle of representation has been 
introduced. The electors would be completely confounded in looking 
over a vast extent of country, for several hundred individuals, whom 
each was to vote for, and no choice could be understandingly made. 
The central government, or its managers, would choose for them. 

But even if a selection in the genuine sense could be made, there 
would be no representation of the minority. The party in the 
majority would wield the power of the commonwealth without control, 
without the corrective influence, which an antagonist party is so well 
calculated to exert. The minority might approach to within one or 
two hundred of the majority, among two or three millions of votes, 
yet the last would elect every member. Even in the consolidated 
governments of Great Britain and France, therefore, the country is 
divided into electoral districts, which is a plain acknowledgment that, 
even where there are no local governments, there should be local repre- 
sentatives. The justice and utility of recognizing in some mode or 
other the local interests, is forced upon society, even where the form 
of government seems to forbid the idea. The arrangement which 



00 



NATURE AND TENDENCY 



[book U 



nature makes of human affairs sometimes rides over all the laws which 
are intended to counteract it. 

With regard to the two other modes of election, by general ticket in 
each of the great local divisions, or by electoral districts carved out of 
those divisions, the reasoning which has already been employed is 
equally applicable to show that the latter is greatly to be preferred, 
whether the elections are to the national, or the local, legislatures. 

In England, as before remarked, knights of the shire were originally 
the representatives from the counties. The shires were local divisions 
of the kingdom, and the knights of each shire deputed one of their 
own number to parliament. The continuance of these parliamentary 
districts has survived the artificial state of society from which it 
sprung, and contributes in an eminent degree to the freedom and 
independence of the legislative body. It is this mode of election 
which has given rise to the question so' often agitated : is the member 
elected the representative of the whole state, or of the district which 
chooses him ; — which is in some respects similar to another question 
which might be put: whether man is an individual, or a member of 
society. The answer would be nearly the same in the two cases. 
Man is both an individual and a citizen ; and the deputy is a repre- 
sentative of his district, and at the same time of his whole country. 
And as that system of private conduct which most effectually consults 
the welfare of the individual, conduces most to the prosperity of the 
community, so that system of public conduct which most truly 
advances the interests of one part of the country, is certain to redound 
to the advantage of the whole. But inasmuch as men do not always 
see things as they really are, as ignorance, prejudice, and egotism lead 
them so much astray in whatever regards the public interests, the 
system of domestic government is contrived in order to prevent the 
interference of sectional with the national interests. And thus the 
question, is the deputy the representative of his district, or of the 
whole country, is of infinitely rarer occurrence in the United States, 
than it would be if the population composed one aggregate community. 
Election by districts mitigates the rigor of the rule, that the majority 
are entitled to govern. It draws the bond of responsibility closer, 
and it breaks the force of party spirit. The first has been sufficiently 
explained. 

Where local legislatures are created, the effect is that the national 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



91 



interests are not represented in them, nor are the local interests 
represented in the national assembly. This is the general tendency 
of the plan ; though as the boundary between the two jurisdictions 
cannot be drawn with exact precision, exceptions will necessarily 
occur. The responsibility of the deputy to the local legislature will 
be stronger, because, if his constituents are local, so also are the 
interests which he represents. The responsibility of the deputy who 
is sent to the national legislature will be more complete : because, 
although his constituents are local, the interests which he represents 
are exclusively national. Where this distribution of the powers of 
government is established, this further effect takes place. As the 
responsibility of a legislative body is in an inverse ratio to the number 
of its members, after a certain point is reached; so also the responsi- 
bility of the members is greater, where those to whom they are 
immediately accountable do not compose a great multitude. The 
representative of a district is constantly exposed to the gaze of his 
constituents. He might hide himself among two or three millions of 
people. He cannot do so among fifty or an hundred thousand. 

Whatever contributes to afford a clear insight into public affairs, 
and enables every thing to be seen in its true light, abates the 
violence of party spirit. Whatever shrouds them in mystery, and 
causes them to be seen confusedly, gives force to party spirit. The 
representative is the instrument of communication between his con- 
stituents and the world of politics ; and whatever causes his conduct 
to be distinctly surveyed, causes the system of public measures to bo 
more easily grasped, and more generally understood. 



NATURE AND TENDENCY 



[book I. 



CHAPTER VII. 

PARTIES THE OFFICE THEY FULFILL IN A REPUBLIC. 

Many persons of great intelligence, and who are inclined to look 
with a favorable eye upon the progress which society is every where 
making, when they behold the scene of strife and contention which 
parties in a republic give rise to, recoil from it with dismay, and are 
instantly disposed to take refuge in what they denominate strong 
government. Nevertheless, it is most certain, that the distinguishing 
excellence of free institutions consists in their giving birth to popular 
parties, and that the annoyance and inconvenience which these occa- 
sion to individuals, both in public and private life, are productive of 
incalculable advantage. It is a great mistake, with our knowledge 
of the constitution of human nature, to suppose that society would 
be better ordered if its surface were a perfect calm. The democratic 
principle has come into the world not to bring peace, but a sword ; or 
rather to bring peace by a sword. One may easily conceive of an 
individual, that his various faculties may be so evenly balanced as to 
give rise to the justest and the most consistent scheme of conduct. 
And one may liken the state to some huge individual, and say that 
the rival views and opinions of different parties conspire to the same 
end ; that when these are free to give utterance to their sentiments, a 
similar equipoise takes place among all parts of society, and that 
something like a regular system takes place in the conduct of public 
affairs. 

The human mind, with all its capabilities of thought and action, is 
wonderfully disposed to listlessness ; so that it requires the most 
powerful incentives in order to rouse its dormant energies. And the 
condition of the great majority of mankind is such, that none but 
those sensible interests which touch them on every side can be relied 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



C3 



upon as the instrument of moving them. By giving a full play, and 
a favorable direction to these, we succeed in imparting activity to the 
disposition. And this being attained, a great amount of thought 
and reflection is sure to be developed among the great bulk of the popu- 
lation. Party spirit at bottom is but the conflict of different opinions, 
to each of which some portion of truth almost invariably adheres : 
and what has ever been the effect of this mutual action of mind upon 
mind, but to sharpen men's wits, to extend the circle of their know- 
ledge, and to raise the general mind above its former level. Therefore 
it is, that an era of party spirit, whether religious, philosophical, or 
political, has always been one of intellectual advancement. A pow- 
erful understanding may be sufficiently stimulated by the study and 
investigation of abstract truth : but the diffusion of knowledge in the 
concrete seems to be indispensably necessary to produce this effect 
among the great majority of mankind. 

The existence of parties in a republic, even noisy and clamorous 
parties, is not therefore a circumstance which should be regarded as 
inimical to the peace and welfare of the state. It should rather be 
received as a special and extraordinary provision, for furthering 
the interests and advancing the intelligence of the most numerous 
class of society. By creating an arena on which all men may be 
active and useful, we are certain of attracting an incalculably greater 
number to the pursuit of industry and knowledge than would be pos- 
sible under any other state of things. The growth of popular parties 
constantly keeps pace with the diffusion of industry and property. The 
diffusion of industry and property, by exercising the mind intently 
upon small things at first, exercise it earnestly and seriously upon 
important ones in the end. 

The true theory of popular parties then consists in multiplying the 
employments of private individuals, — in increasing the active industry 
of the whole community. The regular deportment and habits of 
reflection which these produce counteract the vicious tendencies of 
the system, and operate as a safeguard against the extreme excesses 
and the violent revolutions which occur in other countries. As the 
interests of private persons under this system become more and more 
identified with those of the state, each one has a desire and a motive 
for understanding and taking part in public affairs. The question 
in human affairs is never whether any particular arrangement shuts 



04 



NATURE AND TENDENCY 



[book I. 



out all mischief and inconvenience, but only whether it excludes the 
greatest practicable amount ; and not of one kind merely, but of all 
kinds. Thus although, in a democratic republic, a vastly greater 
number of people take part in politics than under any other form of 
government, the minds of a vastly greater number are exercised by 
some healthful and useful occupation, which not only inspires sagacity 
and energy, but communicates a character of seriousness and reflection 
to the whole population. The weak side of human nature is thus, 
constantly propped up and strengthened. The bickerings and ani- 
mosities of parties are not extinguished ; but there is, notwithstanding, 
a greater degree of public tranquility than would otherwise exist. 

Popular parties are not only the natural result of elective govern- 
ment, but what is of much more consequence, they are absolutely 
necessary to uphold and preserve it. It is too common to regard 
certain arrangements of society as a sort of necessary evils; and 
thus very imperfectly to comprehend their true design, and the impor- 
tant agency which they have in securing the public welfare. 

As the political institutions in a republic are of a totally different 
character from what they are in monarchical or aristocratical govern- 
ment, there is a corresponding difference in the machinery which sets 
each of them respectively in motion. In the artificial forms of 
government, a system of checks and balances is devised, to secure the 
influence of the public authority, and to maintain each department in 
its proper place ; but such an expedient would be futile and powerless 
where government means vastly more than the rule of the persons 
who fill the various public offices. In a republic a substantive part 
of the political authority is designedly communicated to the whole 
population. We want something more, therefore, than a scheme of 
checks and balances within the government. As the forces which 
are set in motion are so much more extensive, we must contrive some 
machinery equally extensive, for the purpose of controlling them. 
And thus popular parties very naturally, not to say necessarily, 
take the place of that curious system of checks and balances which 
are well enough adapted to a close aristocracy, or pure monarchy, 
but which play only a subordinate part in representative government. 

In a despotism parties have no existence. Factions there may be, 
but not parties. In all the other artificial forms of government, the 
constitution of parties is more or less imperfect, because they are 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



05 



overborne by an extraneous influence which disables them from faith- 
fully representing opinions. In a democratic republic, the people 
themselves compose all the existing parties. Hence opinions are not 
only submitted to examination, but they are submitted to the exami- 
nation of those who are immediately affected by them. But the 
greater the number of persons who are consulted with regard to any 
measure which has an important bearing upon their interests, the 
greater is the probability that it will be adjusted with a view to their 
common welfare. The process may be tedious and circuitous, but 
this is an advantage, since it will cause a greater amount of reflection 
to be employed. Moreover, when opinions have to pass through a 
great number of minds, before they are reduced to practice, society 
does not experience a violent shock, as it does upon their sudden and 
unpremeditated adoption. Factions stir the passions of men, but 
parties introduce the conflict of opinions. 

It would appear, then, that the wider the arena on which parties 
move, the more numerous the persons who compose them, the less 
dangerous are they to the state ; which is the reverse of the conclu- 
sion to which the great majority of men are inclined to lean. 

The absence of parties in a country of free institutions, would imply 
the existence of unanimity on all occasions. But in the imperfect 
condition of man, unanimity would not desirable. As in the individ- 
ual, one faculty is set over against another, in order to elicit the 
greatest amount of judgment, wisdom, and experience ; so the mutual 
encounter of rival opinions, in different sections of society, constitutes 
a discipline of the same character, on a much larger scale. Una- 
nimity, which has the appearance of being the only rightful rule, would, 
if it were conceivable, render society absolutely stationary. Man is 
not born with knowledge ; and all the useful or noble qualities which 
he ever exerts are the offspring of variety, not of uniformity. Con- 
stituted as human nature is, there would be no virtue without some 
conflict of interests, and no wisdom without some conflict of opinions. 

And this supposes a very important fact in the history of society ; 
that although the majority rule, the minority, by virtue of the naked 
power which belongs to opinions, are able to exert an indirect, and 
yet very decisive, influence upon the course of public affairs. This 
influence is so great, that no one who has been accustomed to examine 
the workings of society in different countries can fail to have been 



96 



NATURAL TENDENCY 



[book h 



struck with the repeated instances in which the opinions of a minority 
have triumphed over those of the majority, so as ultimately to become 
the settled and established opinions, and to transform the minority 
into the majority. And this, notwithstanding the civil institutions 
may not have been very favorable to the rise and growth of parties. 

Among the important changes in the scheme of public policy which 
have taken place in Great Britain in very recent times, may be enu- 
merated the abolition of the slave trade, the amelioration of the 
criminal code, the introduction of more liberal principles into com- 
merce, the reformation of the civil jurisprudence, catholic emancipa- 
tion, and parliamentary reform. In each of these instances the new 
opinion commenced with an exceedingly small party, and encountered 
in its progress the most solidly established authority. If the triumph 
has not been complete, it is certain to become so, in consequence of 
the strong ground which these very efforts have enabled popular par- 
ties to stand upon. So far from a minority not exercising a very 
marked influence upon the conduct of public affairs, the instances 
will be found to be exceedingly rare in any country where opinions 
are able to make themselves felt, in which a minority have not suc- 
ceeded, if the cause it espoused entitled it to be victorious. This 
fact would seem to show that so far as effective and permanent influ- 
ence is concerned, it is of little consequence whether an enlightened 
scheme of policy is first suggested by the minority, or the majority. 
The fact that it is enlightened gives it a claim to success, and that 
success is almost infallible. 

Among the important movements which have taken place in 
American society may be noticed the revolution, the establishment 
of the federal constitution, and the ascendancy which the republican 
party attained in 1801. Each of these revolutions commenced with 
an inconsiderable band, which ultimately won its way to public confi- 
dence, and totally reversed the position of parties. The declaration 
of independence was only carried by one vote. The freedom of the 
colonies might have been rightfully asserted half a century prior to 
1776. But although the struggle of opinions may be more protracted 
than that of armies, it always terminates in more decisive results. 
As to the second of those revolutions, the establishment of the con- 
federate form of government, it was at one time deemed absolutely 
impracticable. Governor Pownall, in his work on the administration 



chap, vii.] OF FREE INSTITUTIONS. 97 

of the colonies, written about the time of the celebrated convention 
at Albany, declared that they had no one principle of association 
among them, and that their manner of settlement, diversity of char- 
ters, conflicting interests, and mutual rivalship, forbid all idea of an 
union. And Dr. Franklin, who was one of the commissioners to that 
convention, declared that an union of the colonies was absolutely 
impracticable — or at least, without being forced by the most grievous 
oppression and tyranny. The acutest observers, and the most expe- 
rienced statesmen, underrated the force with which opinions are armed, 
when they are pursued with a steady and unfaltering resolution. 

The third resolution was the natural consequence of the others. 
The two first acted upon the political institutions, and remodeled the 
government. The last acted upon the manners, and brought the 
laws, and the structure of society, into harmony and agreement with 
each other. 

I will mention but two instances in the history of the state govern- 
ments, in which the opinions of a party greatly in the minority have 
finally prevailed, and obtained an almost unlimited ascendancy. These 
are the amelioration of the criminal code, and the establishment of a 
system of internal improvements. Each of these enlightened schemes 
originated with a very small party — the one in Pennsylvania, and 
the other in New York. And they have not only conquered all oppo- 
sition in those states, but have extended their influence over the 
whole union. 

The struggle of new with old opinions will be more tedious in an 
old than in a new country. The abolition of the laws of primogeni- 
ture, and the simplification of the code of civil jurisprudence, did not 
occupy much time in the United States. In Great Britain, it is only 
within a few years that the second has been even partially accom- 
plished. The first may not be effected in half a century or more. 

Thus, whenever the general state of public opinion is least prepared 
for an important change in the existing institutions : that is, whenever 
agitation, discussion, and the encounter of rival opinions, is most 
necessary, and will be productive of most advantage — by developing a 
great amount of observation and experience — the struggle of new 
opinions is the longest protracted ; and wherever these qualities already 
exist in great perfection, the contest is short, and soon brought to a 
close. 

7 



98 



NATURE AND TENDENCY 



[book I. 



As soon as the period arrived when congress had authority to 
abolish the slave trade, it was abolished. The debate on the subject 
is not one of the memorable debates in the American legislature. 
But it is one of the most memorable which has taken place in the 
British parliament, during the last half century. 

It is curious to notice the manner in which parties deal with each 
other, and to watch the process by which opinions are communicated 
from one to the other. For parties would be without meaning and 
without utility, if they were eternally to battle with each other with 
no other result than the alternate loss and acquisition of power. The 
desire to obtain the ascendancy may be the moving spring which 
actuates each; but fortunately this spring cannot be set in motion 
in a country of free institutions, without rousing a prodigious amount 
of reflection among a very large portion of the population. Doubtless 
the true use of parties is very far from being to administer provocatives 
to demagogues to gratify their private ambition. Their selfish views 
may be necessary in order to animate them in the pursuit of certain 
opinions. But the moment these opinions are promulgated they are 
subjected to a searching examination in all parts of society, because 
they are felt to have a practical bearing upon the substantial interests 
of all. The true office of parties then is to elicit and make manifest 
the amount of truth which belongs to the tenets of each; so that the 
great body of the people, who belong to no party save the party of 
their country, may be both easily and understandingly guided in the 
path they pursue. 

In the progress of the struggle which takes place between parties, 
they will often be very equally balanced, and each will, for a time, 
alternately acquire the ascendancy. The first time that the party 
which before had been habitually in the minority attains a decided 
preponderance, is felt as a presage of permanent success. The new 
opinions are then deemed to be practicable. Old associations are 
broken, and a new impulse is given to the new party. The party 
which had been accustomed to carry every thing, falls back into the 
minority; and this example of the instability of power sets every one 
a thinking, and even amid the strife of politics, produces more prudence 
and moderation. The party in the minority, and now discarded from 
power, is at first disposed to cling to its most extreme opinions. Its 
pride has been wounded, and its ambition disappointed. It has no 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



99 



idea of turning to any set of opinions upon compulsion. But a 
popular party contains a vast number of individuals whose temper- 
aments, modes of thinking, and opportunities of information, are often 
exceedingly different, and whom it is impossible to fashion as you 
would a close body into one unalterable form. Reflection sooner or 
later takes the place of passion. And as the attachment of indi- 
viduals to their own independent opinions is often much stronger than 
to the opinions of a party, every assurance is afforded that the new 
and enlightened opinions which have been introduced into the public 
administration will not only be the rule for the party in power, but 
that they will spread their influence more or less over the men of all 
parties. Every one soon sees that there is really no such thing as 
compulsion in representative government; and that if a system of 
policy has fairly won over a majority of the suffrages of twenty 
millions of people, a very considerable portion of truth, to say the 
least, must belong to that system. They recollect that as no one 
man can represent the whole of humanity, so no one party can repre- 
sent the whole truth in politics. Thus the minds of many, who were 
most obstinately set in the opposite direction, are gradually opened to 
the reception of new opinions. They begin to declare, for the first 
time, that some very important changes were necessary to secure the 
well being of the state. Great numbers openly go over to the 
opposite party ; some from settled conviction, others from a sort of 
instinctive feeling that all was not right before. This gives additional 
strength to the majority, which, when it does not advance merely 
novel opinions, but appeals to truth and to the judgment of mankind, 
is sure to retain the supremacy for a considerable period. Every 
thing then becomes fixed and settled. 

But this very fixation of every thing, so delightful to those who 
have been tormented by anxiety, and tossed by contrary hopes and 
fears, is not to last forever. This state of repose is often as fatal to 
the maintenance of free institutions, as the ill-regulated ambition of 
parties. Prosperity corrupts parties, as well as individuals. The 
long enjoyment of power persuades those who have possessed it, that 
it can never be wrested from them. Abuses, though not perhaps of 
the same kind, break out again. These abuses gain strength gra- 
dually. They are fortified by the prejudices which the prescription 
of time creates, as well as by the self interest and cupidity of the 



4 



100 



NATURE AND TENDENCY 



[book u 



leaders of party. Any attempt to root them up, is regarded as before 
as an attempt to change fundamental usages, and to tamper with the 
vital interests of the community. Then commences a new struggle, 
very much resembling the former ; the same circle of opinions will be 
described as in the former revolution. Every thing will again be set 
right, without shedding one drop of blood, without the employment 
of any other instrumentality than the simple dropping of the ballot. 
But it may happen that the new opinions which now spring up will 
not be entitled to as entire confidence as in the former revolution. In 
the progress of the controversy, each party will cause some portion 
of its own opinions to be adopted. The issue will not be so decisive. 
A new party, or probably an old party, with views greatly modified, 
will succeed to power, and will preside for another term of years. It 
is in this way, that all parties find themselves, somehow or other, repre- 
sented in the state — some virtually, others potentially ; and although 
the government is frequently exposed to the most formidable power by 
which it can be assailed, that power is exercised so steadily, and yet so 
silently, as to overturn nothing, and yet to revolutionize every thing. 

There is another very curious inquiry connected with this subject; 
one which unfolds a very instructive chapter in the history of human 
nature. I believe it will be found, on a close observation, that parties 
in a republic, in great numbers of instances, originate in, and are 
nourished by, secret rivalships in private life ; and that although ques- 
tions of state policy serve to designate them, and to give them an 
outward form, those questions are in great part laid hold of in order 
to give force and effect to feelings of a very different kind. If the 
history of every hamlet and neighborhood in the United States were 
written, this fact would be found verified with wonderful exactness. 
But it is not necessary that we should be acquainted with the chroni- 
cles of all. It is enough to seize the events which pass under our 
own observation. What takes place in a few will differ in no material 
respect from what transpires in all. 

If we suppose that there are two or three men in a neighborhood 
who possess considerable influence, whether arising from family con- 
nections, wealth, or any other of the advantages of fortune, this at 
once lays the foundation for rivalship in its most secret forms. En- 
vyings and heartburnings insensibly grow up. This is a fact we are 
bound to know, only to draw instruction from it. This rivalship 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



101 



gradually extends to the connections of each — to their friends, and 
acquaintances — to all those who may be disposed to take refuge under 
the influence of one, rather than of the others — until at length the 
whole neighborhood is involved in their disputes. One perhaps ac- 
quires a decided ascendency ; and in a few years this disproportioned 
influence incommodes great numbers of people in all the walks of 
private life. Many immediately declare, that they can see no reason 
why so much importance should be ascribed to any one who does not 
possess either eminent virtue or ability ; and they set themselves to 
work more vigorously than ever, in order to abate so great a nuisance. 
At the same time political questions are discussed, and agitated every 
where, and regular parties in the state are organizing. Each of these 
neighborhood clans connects itself with one or other of those parties, 
as the chance of success in their private views may dictate. The 
democratic party is understood to be the one which is most favor- 
able to the equal rights of the citizens ; and all the opponents of this 
mimic aristocracy in a country neighborhood ally themselves with 
that party. 

The influential man does not always put himself forward as a can- 
didate for office. He feels that this would be to create envy among 
his own dependents — that it would be a dangerous test of his capa- 
city and wisdom. But he brings some one forward who leans upon 
him, and who if not the most capable, will be the most available, man. 
And party politics now having two faces, the most available will 
generally be the most incompetent man. This mixture of private 
views with the political questions of the day, will sometimes render 
the machinery of parties very complicated and difficult to understand. 
And it will cause oscillations among parties when they were least 
expected. But we will suppose that the democratic party prevails. 
The influence which was before so serious an annoyance, and the sub- 
ject of so much complaint in private, is then greatly diminished. 
Some one whose connection with the wealthy will be less obvious, 
and whose reliance upon the masses will be closer, is elected. He 
also may be nicknamed an available man — that is, a man whose face 
is smoothed — or a practical man, which means a man with a single 
idea. At any rate the personal weight and importance which political 
promotion gives him, and the bright prospects which every one beholds 
opening in his path, concur to clothe him with a very enviable share 



102 



NATURE AND TENDENCY 



[book e. 



of influence. Or, if he also has been merely put forward to further the 
private schemes of others, the same effect is produced. A new influ- 
ence is raised up in the neighborhood to act as a counterpoise to that 
which before prevailed. But in a few years, the same annoyance is 
felt in consequence of the ascendency of this new party. Men begin 
then to exercise a bolder spirit of inquiry than they were willing to 
trust themselves with before. They see no reason why wealth, or any 
other fortuitous advantage, should give claim to precedence in society. 
The new favorite perhaps owed his elevation to personal motives and 
private views. But he is perhaps not fully sensible of this; or, at 
any rate, it does not readily occur to him, that after being elected to 
a public station, of considerable responsibility, he has any other voca- 
tion than to attend to the public business. He separates the end 
from the means, and congratulates himself with the reflection that 
now a public trust is confided him, he will be at liberty to act with a 
single eye to the people's interests. 

After an interval more or less long, during which there will be 
great fermentation in the ranks of both parties, some new man will 
be selected, who will reflect the feelings, as well as the political opin- 
ions, of those who elect him. His success is almost certain ; for the 
private aims and secret prejudices which were originally set in motion, 
have been continually gaining strength. And in order that the suc- 
cessful candidate may now well understand the line of conduct which 
he is expected to pursue, what were before regarded as motives which 
might well enough influence without determining public conduct, are 
erected into opinions, on which full as much stress is laid as on any 
of the questions of public policy. This gives a deeper movement to 
the workings of parties. All sorts of opinions are now hazarded; 
men approach inquiries, which before were only touched lightly, and 
by stealth. The fault with the public man now is, that he runs into 
the opposite extreme. He takes his constituents literally at their 
word, and acts out his part even to exaggeration. He is intent only 
on gratifying his spleen : he indulges in personal invectives, in gross 
and indecent assaults. He has brought himself to believe that the 
public business is not merely of secondary importance, but that it is of 
hardly any importance whatever. He administers provocatives enough 
to the bad passions, but neglects and mismanages public business. 
The consequent derangement of political affairs is now more or less felt 



CHAP VII.] 



OF FREE INSTITUTIONS. 



103 



by the people in their private interests. Moreover, they are mortified 
in finding that some portion of the disgrace which their favorite has 
incurred attaches to themselves. Numbers then confer together, but 
in such a way as to avoid if possible the notice of the opposite party. 
They consult in private, how it may be possible, with the least noise, 
and inconvenience, to remove the present incumbent, and to elect some 
one of prudence, and discretion, even though his talents should be as 
moderate. A majority, perhaps, are candidly of this opinion; but a 
considerable number still cling to their personal views, as being the 
true index of public opinion ; and without the aid of this body, it will 
be impossible to effect any thing. Without their votes, the majority 
will fall back into the minority. All the private consultations are 
then hushed up, and the differences which produced them are forgotten 
for a time. The party displays a bold and decided front at the polls, 
and re-elects the former man. But the blow which is to crush him 
is already struck. His enemies are gathering strength. They even 
feel envious of him, that he is in a condition to display so much more 
energy than themselves. The minority of the party feel that it would 
be absurd that the majority should constantly yield to them. Besides, 
the new fashion of thinking begins to infect themselves. They regard 
their favorite with coldness, simply because so many people are dis- 
posed to discard him. They even permit him to feel this, in order 
that he may so act toward them, as really to deserve their cold 
treatment. 

During all this time, and while these changes succeed each other, 
with more or less rapidity, the utmost inquisitiveness is excited among 
all orders of men. The connection which has taken place between 
politics and private manners, brings the former more completely 
within the reach of every one. It seemed impossible before to gain 
admittance to state secrets, so as to have any notion of the complex 
machinery by which government is worked, simply because there was 
so little to stir the feelings, and through that medium to rouse the 
understanding. 

This difficulty is in a great measure removed ; and in spite of the 
eternal wrangling of parties, or rather in consequence of it, a greater 
amount of knowledge, a keener sagacity, and juster views, are created 
than would otherwise exist. Those who had formerly been invested 
with influence, and who imagined they were the hinges on which 



104 



NATURE AND TENDENCY 



[book l 



society turned, look on with amazement, to find public affairs 
conducted as well as when they took the lead. They observe that an 
entire revolution has taken place in the disposition and management 
of society. They ascribe this to envy, and doubtless envy had a great 
part in bringing it about. But, in human affairs, the inquiry is not 
always what is the cause of any particular change, so much as what is 
the character of the change itself. It is a great compensation for the 
existence of bad passions and propensities, when we cannot be 
without them, that they may ultimately be subservient toward 
rendering human nature better than it was before. 

Through the instrumentality of the causes at which I have merely 
glanced, in order to set the reader a thinking, knowledge has been 
diffused, and power and influence, in both public and private life, 
have been more evenly balanced in every township and county of an 
extensive country. These views contribute to explain a remarkable 
fact in the history of parties in America. Taking any considerable 
series of years, it is surprising to find how often parties have been 
very equally balanced. The see-saw politics of some of the states 
seems even to be a reproach to them. But beneath this outside 
appearance there is always something to ponder upon. For if, on 
whichever side the scale of power inclines, the equilibrium of influ- 
ence in every village and neighborhood is disturbed, the only way to 
restore it is by throwing more weight into the opposite scale, and thus 
the oscillations of parties may be almost as frequent as the annual 
elections. As soon as one party obtains a decided predominance, new 
rivalships grow up. A multitude of passions and desires (independent 
of the political controversies of the day) are set in motion, for the 
purpose of displacing it, or diminishing its authority. 

Hence another apparently singular phenomenon, that individuals of 
the most opposite political predilections, and of the greatest difference 
in point of character and mind, are habitually ranged in the same 
party. It would be deplorable if it were not so. And although one 
party is sometimes foolish enough to arrogate to itself all the virtue 
and talents in the community, yet there is, in truth, a very equal 
distribution of both among the men of all parties. 

Another and equally curious fact may be noticed, that parties often 
seem to exhibit a mere struggle between the ins and outs. But if 
the power which is brought to bear upon political affairs is adjusted 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



105 



and regulated by the power and influence which are distributed in 
private life, and if this affects human happiness more than all other 
causes put together, the struggle may conduct to very important 
ends. I have already said that in a republic parties take the place of 
the old system of balances and checks. The latter balance the 
government only, the former balance society itself. 

Frequent changes of the public officers are a consequence of these 
vicissitudes among parties. But it is of the greatest importance, in 
a country where the electoral franchise is extensively enjoyed, that as 
large a number of the citizens as practicable should be initiated into 
the mode of conducting public affairs, and there is no way by which 
this can be so well effected as by a rotation in office ; and the direction 
which party disputes take affords the opportunity of doing it. If it 
were not for this, public employments would be continued in the same 
individuals for life, and after their death would be perpetuated in their 
families. But public office, of even an inferior grade, is a species of 
discipline of no unimportant character. It extends the views of men, 
trains them to the performance of justice, and makes them act for 
others as well as for themselves. It thus binds together the parts of 
society by the firmest of all bonds, and makes it tend constantly to a 
state of order and tranquillity, in the midst of the greatest apparent 
disorder. If men were less quarrelsome ; if an easy good nature was 
all that moved them, they would not be inclined to change their 
public officers as often as the interests of society demands. The 
detriment which would follow would be much greater than any which 
their quarrels produce. 

It has been supposed, that where these changes are frequent, the 
persons elected must, for the most part, be inexperienced and incom- 
petent. The fear lest this should be the case is wisely implanted 
in our nature. It holds us back when we are about to run into an 
extreme. The feeling is as much a part of our constitution as any 
of its other tendencies, and must be strictly taken into account in 
every calculation which we make as to the general working of the 
system. But public office itself creates, to a great extent, the very 
ability which is required for the performance of its duties. And it is 
not at all uncommon, when individuals have been snatched up from 
the walks of private life to fill responsible stations, to find that the 



106 



NATURE AND TENDENCY 



[book I. 



affairs of society are conducted pretty much upon the same principles, 
and with as much skill and intelligence, as before. Habits of order 
and method are soon imparted to the incumbent, and they constitute 
the moving spring of all effective exertion, either mental or physical. 

In a republic, the rise and fall of parties are not merely revolutions 
in public life, they are revolutions in private life also. They displace 
some men from office, but they alter the relative position of a much 
greater number in private life. Political controversies afford an 
opportunity for parties to develop themselves : and these controversies 
do very often present a legitimate field for discussion. But they do 
not contain every thing; they do not express the whole meaning of 
parties. A given scheme of public policy may affect very remotely 
the substantial interests of the population; but the jostling of men 
in private life is a perpetual source of uneasiness and discontent, and 
they seek to relieve themselves by an alliance with party, because, 
as individuals, they are powerless, while party associations are strong. 
The views and actions of men may be the most narrow and selfish 
imaginable, and yet, they may terminate in consequences of the most 
beneficial character. The prominent men of each party exert them- 
selves to carry extreme measures ; a great multitude of private indi- 
viduals intend to acquire some advantage unseen, but not unfelt, over 
their neighbors. The fall of a party at such a time, like a sudden 
stroke of adversity, quells the pride of the politician, and inculcates 
prudence, caution, and forbearance, in private behavior. 

The reason why the workings of party are so much more ramified 
and extensive in a republic, than in any other form of government, 
is easily explained. In monarchy and aristocracy, the bulk of the 
people are spectators, not actors; and the operation of parties is 
necessarily confined within a narrow circle. But free institutions 
presuppose that the mass of the people are active, not passive, citi- 
zens, and parties not only regulate the conduct of the handful of 
men who preside over public affairs ; they regulate also the conduct 
of the millions who, although out of the government, yet constitute 
the springs which set the government in motion. If this were not 
the case, if there were no regulative principle to shake society, as 
well as to act upon the government, there would be no way of main- 
taining free institutions. Men who hold office may be punished 



» 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



107 



for misconduct; but how is it possible by legal enactments to punish 
whole parties. When, however, a party is tumbled from power, 
the individuals composing it lose caste — lose some portion of that 
consideration which before attached to them. If this produces 
more boldness and recklessness in some, it promotes more reflection 
and prudence in others. 



108 



NATURE AND TENDENCY 



[book I. 



CHAPTER VIII. 

A REPUBLIC IS ESSENTIALLY A GOVERNMENT OF RESTRAINT. 

No one who is an attentive observer of human nature, can fail to 
be struck with the amazing influence which the opinion of a multitude 
of men exercises over the mind. We can stand up and confront a 
single individual even though we are far from being right, but we 
recoil with a sort of dread from any opposition to the opinion of a 
great number. Many causes concur to produce this effect: 

First. The notion of right and wrong is implanted in all men. 
That we should feel distress and anxiety when we do wrong, requires 
no explanation ; for this is running counter, if not to our propensities 
and passions, yet, at any rate, to the governing principle of our 
conduct. To say that we feel an immoral action to be wrong, whatever 
may be the allurements with which it is accompanied, is the same as 
to say that the sense of right is felt to be the authoritative prin- 
ciple, and that any departure from it fills us with uneasiness and 
apprehension. 

But, in the second place, the training and formation of the human 
character are conducted in youth, when the mind is feeble and without 
much observation and experience. We, therefore, emerge into a 
world where a system of opinions and conduct is already established, 
and it does not seem unnatural but rather a necessary consequence of 
the process by which human conduct is shaped, that we should defer 
greatly to the standand of opinion which is erected, and our deport- 
ment (not so far as regards the fundamentals of morality, but) as 
regards those actions to which are affixed the appellations fit and 
unfit, proper and improper, reasonable and unreasonable, should be 
compressed into a conformity with it, and that any revolt against it 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



109 



should be followed with a sense of dread and uneasiness. And this 
more especially as so large a proportion of this class of actions affect 
other men, and carry along with them, not merely the force of opinion, 
but that of authority. 

If it should be said that the presence of such a force, constantly 
acting upon the faculties of men, and holding them in check, must 
frequently have a disturbing influence upon their actions, this will 
be admitted ; but there is, on the whole, much greater security for the 
preservation of a tolerably right standard, than if every one felt 
himself independent of the opinions of all. This singleness in the 
character of the rule gives unity to those numberless actions which 
are isolated, and prevents their being drawn too exclusively in the 
direction of self interest. 

Each individual is apt to view himself from a point different from 
that where he is viewed by others. His horizon is more limited than 
theirs, not because he has fewer or feebler faculties, or because he has 
less correct notions of right, but because, in the case of the individual, 
these notions are liable to be obscured by feelings and interests which, 
although they may be common to all, are obliged to be kept under 
and restrained, when they come to think and act in a body. There 
is a high probability, therefore, that the opinion of an individual as 
to his own conduct is biassed, and an equal probability that the senti- 
ment of the body is impartial. The mere apprehension that this may 
be the case hangs like a perpetual weight upon each one, and renders 
him, to say the least, more thoughtful and circumspect than he would 
otherwise be. He is thus better enabled, in those instances where 
he is in the right and they in the wrong, to appeal from their judg- 
ment to the judgment of mankind. 

That class of actions which are generally denominated selfish, carry 
for the most part their own antidote along with them. That they 
are selfish constitutes the great protection of the community against 
their inroads. For it will be easily seen that if there were the same 
sympathy with others in the gratification by them of their lower pro- 
pensities, as there is in their noble and disinterested actions, the 
former would gain the mastery, and society be converted into a bed- 
lam. However men may act therefore in particular instances, both 
the secret and the declared opinion of every one is obliged to be on 
the side of right. And this opinion is even fortified by self interest, 



110 



NATURE AND TENDENCY 



[book I. 



when self interest comes to be viewed from the proper point. For 
although the private interest of the individual may sometimes seem 
to coincide with the commission of wrong, when it is abstracted from 
all regard to his relations with others ; yet it can never do so when 
these relations are taken into the account. Now, our relations with 
others, if they do not create, at least modify, that whole circle of 
interests which we denominate private. I do not now speak of those 
actions which spring from the lower propensities, but of those which 
are employed by every one in the improvement of his outward con- 
dition. The pursuit of an absolutely separate interest by some 
would consequently break in upon the private interests of all others; 
while at the same time it is equally clear, that a regard for the rights 
of all others is the only guarantee that our own will be preserved. 
Here then, also, what is termed the general opinion is obliged to take 
a direction favorable to the common weal, and unfavorable to the 
selfish views of individuals. In this way the opinion of all is brought 
to bear upon each; and hence it is that in a democratic republic, 
where the government appears to be wanting in authority, and indi- 
viduals to possess unbounded freedom, what is termed public opinion 
is armed with so much power, inspires so general a respect for the 
laws, and so much terror on the infraction of them. In what is 
termed strong government, society is divided into fixed classes, one of 
which sits in judgment upon all the others. But it is far less pro- 
bable, that the opinion of a class should represent the opinion of 
mankind, than that the combined sentiment of a whole community 
should do so. The laws having consecrated that class as a separate 
interest, have to that extent confounded the opinion of right with that 
of interest. 

It would appear, then, that liberty is essentially a principle of 
restraint. It is true, if others are free while I am not, the principle 
operates unequally — the restraint is on one side. But if I am admitted 
to the enjoyment of the same privilege, my actions will impose a 
check upon the conduct of others, and their actions will impose a 
corresponding check upon me : and the influence of the principle will 
be more or less felt throughout the whole of the society. The exer- 
cise of unrestricted freedom by all, when all are free, is a self contra- 
diction. It supposes a power in each to invade the rights of all 
others ; in which case liberty would fall to the ground and no one be 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



Ill 



free. The possession of the privilege then by all, limits its exercise 
in practice, and men are restrained and controlled precisely because 
they are free. My liberty of action is an habitual restraint upon the 
conduct of others when they attempt to invade my rights, and their 
liberty is in similar circumstances a restraint upon me. It would not 
therefore be strong enough to say that where free institutions are 
thoroughly diffused, it is the evident interest of every one to impose 
a restraint upon his actions. It would be still more correct to say, 
that the constitution of society renders it necessary that he should 
do so. 

The walks of private life furnish us with a fine illustration of this 
important principle. The youth looks forward to the time when he 
will arrive at manhood, with feelings of delight and exultation. His 
imagination paints it as the introduction to a state of unalloyed enjoy- 
ment. But he has no sooner entered upon the world, than he finds 
himself hampered and controlled on every side, by a multitude of 
other beings who have acquired the some freedom as himself. The 
restraint which he met with under the parental roof was nothing 
when compared with the iron weight which now presses upon him ; 
and although no one can claim to be his master, so that physically 
his actions may be freer than ever, yet he finds, what before he very 
imperfectly understood, that the moral force which men exercise upon 
each other in society, is the sharpest and the most powerful of all 
kinds of restraint. 

Now, free institutions produce an effect of precisely the same 
character, and on a much larger scale. They advance the whole 
population to the condition of political manhood. If they do not 
confer any thing like the enjoyment which was anticipated, they give 
rise to what is still more valuable : they multiply the cares and inte- 
rests of life, and teach to the great majority of men habits of pru- 
dence, of reflection, and of self command. That they do not produce 
this effect in all instances, and in very few to the extent which is 
desirable, is no answer to the view ' here taken ; nor does it afford 
any good reason why we should never speak above our breath, when 
we are discoursing of the benefits of liberty. That, there is a marked 
tendency to the production of the effect I have noticed, is an impor- 
tant fact, since it shows that if liberty is power, it is also a principle 
of restraint. And if a general acquaintance with the manner in 



112 



NATURE AND TENDENCY 



[book r. 



which the principle operates, will contribute to strengthen this ten- 
dency, we have abundant reasons for speaking out all that we know. 

When I make reference to the mighty influence which the opinion 
of a multitude of men exercises over the human mind, I do not shut 
my eyes to the fact, that the principle may operate sometimes, nay, 
that it does very frequently operate, so as to have a sinister and very 
pernicious influence, by giving an undue authority to associations and 
particular sections of society. I am aware that in this way a party, 
nay, even a clique, whether in public or private life, may acquire such 
dominion for a time, as to incommode and afflict great numbers of 
other men. Parties collect the opinions of a multitude into one focus, 
and make them appear like the judgment of an invisible being. They 
have been able, therefore, sometimes to oppress the most upright indi- 
viduals, and even to countenance acts of insurrection against the 
public authority. No one has ever mastered a general privilege, until 
he is cognizant of all the leading exceptions to it. The argument in 
favor of free institutions, therefore, never proceeds upon the ground 
that they are exempt from imperfection ; but, that they are more so 
than any other form in which government has been cast, as much so 
as we dare expect from any scheme which human ingenuity may 
invent. 

That invisible power which we term public opinion only tends to 
be right, in proportion as it resembles itself to the opinion of man- 
kind. And I cannot help thinking, that this effect will take place, in 
proportion to the number of men who are in the possession of liberty, 
and who on that very account - are driven to habits of thought and 
reflection. The parties and cliques which spring up in a republic, 
however noisome and hurtful they may be in some respects, may 
contribute to further this important end. For : 

First. They either presuppose, or they excite to, an abundance of 
curiosity, observation, and inquiry. Instead of one or two great emi- 
nences, and all the rest of society a dead level, we have a great many 
eminences, helping about as well as human imperfections will permit 
to lift the great body of the population to a higher condition. 

Second. These parties, associations, and cliques, become so nume- 
rous in a republic, that they thwart, counteract, and control one 
another. Their frequent discussions and wranglings lead directly to 
the detection of each other's impostures, and serve to correct the 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



113 



aberrations into which the different sections of society are perpetually 
falling. By modifying, and limiting each other's views and opinions, 
public opinion is brought more and more into an accordance with the 
voice of mankind. It is an immense boon to society when, if any 
thing is transacted in society which is prejudicial to its interests, it 
shall at any rate not be ,done in a corner : that all who act for the 
public, or upon the public, in order to acquire any influence, are com- 
pelled to act openly. The so doing is the recognition of the exis- 
tence of a tribunal of opinion above themselves, which sooner or later 
rejects all their false and pernicious opinions. Perhaps the majority 
of persons of intelligence and observation — all who have carefully 
pondered upon the experience which they have had of human nature, 
and from it deduced general results — instead of being perplexed by 
the exceptions, are sufficiently convinced of the wholesome influence 
which free institutions exercise. The only question with them may 
be, whether it is ever expedient to speak out so loud as to be over- 
heard by the masses. 

It is not necessary to scan American institutions with a very critical 
eye, to perceive that notwithstanding the great amount of liberty which 
is set afloat, and the inflammable character which this liberty sometimes 
possesses, that there is some how or other a sort of self-regulative 
principle residing in the society, which tends to keep every thing in 
its proper place : that this principle can no where else be so distinctly 
traced, and that it is entirely different from the formal authority which 
the government wields. And as there is no reason for supposing that 
there is any thing very mysterious about the matter, when all the 
machinery of society is openly exposed to our observation, the fact, 
however novel, must admit of explanation, and what explanation so 
natural as is to be found in the restraint which the very enjoyment of 
liberty causes every individual, and each member of society, to impose 
upon one another. It is the partial distribution of the privilege, not 
the communication of it to all classes, which has occasioned so much 
disorder and insubordination in society. Rights and duties are recip- 
rocal. My rights in relation to others are the foundation of their 
duties towards me, and their rights give rise to a set of corresponding 
obligations on my part. Hence we may say, in a general way, that 
the equal communication of liberty, by enlarging the circle of duties 
in the same proportion as it widens the sphere of rights, tends 



114 



NATURE AND TENDENCY 



[book e. 



constantly toward the introduction of a principle of restraint, which 
reaches more or less every part of society. Not that the American 
people are naturally better than the people of other countries, but 
that the political and social organization renders it the interest of a 
greater number to respect and obey the laws, and that this feeling of 
interest operates in such a way as to have not merely a persuasive 
but a coercive influence. Not that there are not many evils incident 
to American society, but that they are fewer than in other govern- 
ments, especially when we take into account those secret and uncom- 
plained-of grievances, which are smothered by the hand of power, or 
which are made to appear insignificant amid the dazzling glare of the 
throne and aristocracy. Lord Coke has said of the court of star 
chamber, that "the right institution, and orders thereof, being ob- 
served, it doth keep all England in quiet." And if such extravagant 
and unfounded notions could be entertained at that period, we may 
be permitted at the present day, to search through society for some 
more homely, and yet more active and diffusive, principle of order. 

There are two opposite plans of introducing order and good 
government into society. The one consists in arming the civil magis- 
trate with a very large share of authority, and thus making every one 
feel as if an enemy were at his door. The other, not unmindful of 
the importance of clothing the public functionaries with ample power, 
is yet chiefly intent on enlarging the sphere of popular rights. It 
expects to fortify the authority of government in this very way. The 
first is the plan of almost all the European governments : the second 
is that of the American republic. By pursuing the last, we add an 
additional force to society — we cause the people to control each other, 
as well as to be controlled by the authority of the laws. The work- 
ing of the same principle may be observed in one or two of the 
European communities ; but it manifests itself in exact proportion to 
the degree in which popular liberty has grown up. 

It is not placing an undue estimate upon free institutions, there- 
fore, to say that in a republic, the distribution of justice, and general 
administration of laws, will be attended with more weight and 
authority, than in either monarchical or aristocratical government. 
The fact is of the greatest consequence, since it enables us to draw 
so near the solution of the very diflicult problem, how to reconcile 
popular liberty with political power. The experiment was deemed 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



115 



perilous in the extreme, until the firm establishment and thorough 
working of American institutions, when what was once a brilliant 
theory began to wear the character of a regular and well-compacted 
system. Sir James Mackintosh was perhaps the first English 
statesman who clearly descried a principle of order in this new com- 
munity. The living under such institutions for a considerable 
period, might beget habits of acting which would insure their per- 
petuity, was very nearly the remark of that enlightened man. Many 
intelligent Europeans still hesitate. The difficulty of the experiment 
may be at an end in America : but they feel unable to calculate the 
exact amount of influence which American institutions may exert 
upon their own. They therefore prefer to exercise the obvious duty 
of patriotism, rather than to seem precipitate in espousing the most 
salutary principles. There is nothing so difficult and irksome as the 
taking up a line of conduct, however wise and reasonable it may be, 
provided it is something entirely foreign to our former habits. Its 
claim to respect only increases the awe which its novelty is calculated 
to inspire ; but the plan once entered upon, it is amazing how fast 
the difficulties vanish, and how easily the new habit sits upon us. 
What is true of an individual, is, for obvious reasons, still more true 
with regard to a community. 

If in Great Britain and France, there exists at the present day 
more public order, as well as a firmer and more regular administration of 
the laws, than at any antecedent period, I do not know to what cause 
we must ascribe it, unless it is to the infusion of a greater amount of 
popular freedom into the institutions of the two countries. Inva- 
riably, a wise and liberal communication of liberty has the effect of 
appeasing, instead of inflaming, the passions. But more than this, 
where the population only feels the pressure of their government, 
they are apt to herd together like miserable sheep ; they are uncon- 
scious of any other danger than that which stares them in the face, 
and take little or no account of each other's actions, although these 
exercise so wide and so constant an influence upon the public weal. 
I think if any one will follow carefully and minutely the workings of 
American society, he will find that the people are fully as much occu- 
pied in keeping each other in order, as they are in checking the 
authority of their governments. It is only by doing the first, that 
they succeed in doing the last. 



116 



NATURE AND TENDENCY 



[book I. 



In a democratic republic, public opinion is a thing of more 
comprehensive import than it is any where else ; and it is made to bear 
more extensively upon delinquents, public or private. In the artificial 
forms of government, the force of society is wielded by the few. It 
is an iron armor worn by a class set apart. The consequence is, that 
although the great bulk of society stand in awe of it, they also most 
cordially detest it, since whatever we fear, we also hate, and whatever 
we both hate and fear, we endeavor to beat down, openly if we can, 
furtively if we must. But in a country of free institutions, I discern 
a marked difference in the feeling of all classes, where crime has been 
committed, or insurrection set on foot. The guilty persons, as soon 
as they have time to reflect, are conscious that they are under the 
ban of public opinion. They whisper to themselves, "it is not a 
privileged class who seek to trample upon us ; it is our fellow citizens 
whom we have arrayed against us ; the judgment of mankind will con- 
demn us." Such very nearly was the exclamation of one of the actors 
in an American mob. This species of awe has a wonderful effect in 
crumbling to pieces the stoutest league which is ever formed. The 
insurgents soon feel themselves to be powerless, their weapons drop 
from their hands, they fall off one by one, and seek to hide themselves 
from public view. The general truth of these remarks is abundantly 
confirmed, not only by the few instances of civil commotion which 
have occurred in the United States, but by the remarkable facility 
with which they have been suppressed. 

This subject is obviously one of great and of increasing interest, 
and very naturally suggests many other very important views. In 
the first place, it must be admitted that hardly any instance of 
insubordination to the laws occurs in the United States, but what we 
hear complaint of the indecision and backwardness of the public magis- 
trates, at the commencement of the affair. Whenever any circumstance 
is observable in the political history of this country, which is different 
from what takes place elsewhere, there is, to say the least, a high pro- 
bability that there is some adequate reason for it, and that it is not 
necessary to suppose, because the precise mode of executing the laws 
which is practiced in other governments is not adopted there, that 
therefore the American police is very defective, or that it is infected 
with the same spirit of licentiousness which is displayed in other parts 
of society. The complaints which are uttered, the uneasiness which 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



117 



takes possession of all classes, lest the laws should not be executed, 
are themselves unequivocal symptoms of the soundness of public sen- 
timent, and of the operation of that moral force which is of so much 
consequence in guarding the peace of society. In the second place, 
this apparent laxity in enforcing the laws, is in great part attributable 
to the few public disturbances which take place, and to the fact, that 
they are invariably of a local character. The American police, if I 
may use the expression, have not got their hand in — they have seldom 
had the opportunity to become initiated into the practice of using 
brute force. An insurrection does not, as in other countries, threaten 
to sap the foundations of the government, and to carry desolation 
into the heart of society. The Americans can afford, therefore, to . 
proceed with a little more caution and deliberation than other govern- 
ments. It is the strong, not the weak, who are most sparing of their 
strength. 

Third. This caution is the result of another circumstance which is 
equally calculated to engage our attention. It springs from a con- 
viction which, whether openly expressed or not, is constantly felt, 
that one side is not necessarily altogether in the right, and the other 
altogether in the wrong. The Americans have got to acting upon 
this principle as one of some appreciable value, and do not permit it 
to remain as a barren and unfruitful maxim in the code of ethics. It 
pervades both public and private society, in all their ramifications, 
and yet the supremacy of the laws is firmly upheld. 

Fourth. This wise prudence, this apparent slowness to act, causes 
less mischief to be done, and restores order more speedily and effec- 
tually, than if a detachment from a standing army were commanded 
instantly to shoot down the rioters. The shocking enormities of the 
French revolution were not put an end to until the middle class took 
matters into its own hands, and by intervening between the two 
extreme parties, was enabled to exert both more prudence and more 
resolution. The great difference between the two countries is, that 
in America the population is almost entirely composed of this middle 
class. That is done constantly and silently, and by way of preven- 
tion, which in France could only be effected after the two parties had 
shed torrents of blood. 

A habitual desire to avoid, if practicable, all extreme measures, is 
eminently favorable toward rousing reflection, and inspires all who 



118 



NATURE AND TENDENCY 



[book I. 



would make opposition to the laws with a sense of insecurity and 
distrust in themselves. They see that the moral and physical force 
of society are against them, and they very soon learn that the for- 
bearance which springs from humanity is invariably coupled with 
bravery, and that it is the invariable precursor of the most resolute 
and determined behavior. The government, which is strong enough 
to use forbearance in every act of authority, is sure to gather all the 
strength which the occasion demands. No band of men, however 
imposing it may be, can maintain a conflict of any duration with the 
public authority, unless it can go beyond itself, and derive support 
from public opinion. 

Various conjectures have been hazarded, in order to account for the 
remarkable order and" tranquillity which have existed in the United 
States. The most plausible are those which ascribe it to the exemp- 
tion of the country from foreign war, and to the incessant occupation 
which the several departments of industry afford to the population. 
But in truth, these are only auxiliary circumstances, very well fitted 
to give full play to the operation of some other principle, but insuffi- 
cient of themselves to account for the phenomenon. Very opposite 
effects have frequently taken place. A season of peace has sometimes 
been highly favorable to the growth of internal dissensions and con- 
spiracies of every kind. In the Italian republics of the thirteenth 
and fourteenth centuries, the period of their greatest prosperity, the 
suspension of foreign war was invariably the signal for reviving the 
most implacable disputes within. The various branches of industry 
offered an inexhaustible fund of occupation to the people ; for Italy 
was then the greatest agricultural country in Europe; and was also 
the principal seat of commerce and manufactures. But in examining 
the constitutions of those states, we find that no higher political privi- 
leges were accorded to the people, than are possessed in most of the 
monarchical governments now existing, and not near so high as are 
enjoyed by the English commonalty. 

The Italian nobles looked upon government as an institution made 
for their benefit, and spent the lives and property of the citizens to 
gratify their personal ambition. The liberty which they possessed 
was not met by a corresponding liberty in other parts of society. 
The people were held in restraint, but there was no principle of 
restraint to operate upon the superior classes. Too little freedom in 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



119 



one quarter leads directly to too much power in another, and the 
very natural consequence is, an eternal conflict between the different 
orders of society. The foreign wars which have scourged the Euro- 
pean states, have been the effect rather than the cause of the discon- 
tents and unequal condition of the population. 

The wisest plan then, perhaps the only practicable one in the end, 
for all countries, is that pursued in America : to communicate equal 
rights to the people — to throw them indiscriminately together, instead 
of dividing them into fixed orders. They are then compelled to asso- 
ciate freely, and this ultimately ripens into a confirmed habit. Indi- 
viduals and classes then act as a perpetual restraint upon each other. 
They are brought to an easy understanding of all those difficulties 
and interests which, under a different constitution of society, lead to 
interminable feuds. Doubtless people incommode each other very 
much in a country of free institutions, but this is the secret of the 
good effect which takes place. They are made to act as watches upon 
each other, to consult each other's temper and disposition, to balance 
the great advantage of acting from impulse. They become keenly 
alive to each other's faults, simply because they have so deep a stake 
in each other's conduct. A new force is applied to society, which 
acts in detail, and not merely in the gross, and which, by regulating 
the conduct of individuals in the first instance, succeeds ultimately 
in regulating that of the masses. The machinery may be very imper- 
fect after all, but it is the best which is placed in our power. Free 
institutions are the only instrument on a large scale for elevating the 
general condition of the people, because they are the only species of 
government which is capable of being converted into an instrument 
of moral and not merely of political discipline, for all classes. 

As the preservation of order, the maintenance of the laws, the 
causing one part of society to be just to all others, are the great end 
of civil institutions, it is plain that unless the republican form con- 
tains some active principle of restraint, which shall take the place of 
the consolidated authority exercised by other governments, it will be 
no better than monarchy or aristocracy. 

The tendency to reflection has been noticed as one of the- striking 
characteristics of modern societies. Every thing seems to depend 
upon the cultivation of this quality. Eeflection is what distinguishes 
the civilized man from the savage ; and it is reflection which makes 



120 NATURE AND TENDENCY [book i. 

some men lovers of order, while others are vicious, and disorderly. 
In the midst of civilization, we are always surrounded by some remains 
of barbarous life. The great desideratum in politics is, how and to 
what extent we can get rid of them. Now the principle of equality 
is eminently calculated to teach habits of reflection. First, it makes 
men depend very much upon themselves, taxes their own resources, 
and obliges them to make exertions which they would otherwise 
never put forth. Second, it brings them more into contact with each 
other, and thus multiplies their mutual relations : since all our efforts 
to better our own condition have an immediate reference to others ; 
and whatever multiplies the relations of man to man, enlarges the 
whole field of observation, and gives more both to think and to act 
upon. It may be that at some future day, it will not be necessary 
for some men to be vicious, in order to compel others to be virtuous. 
The principle of equality may cause jostling enough among men to 
keep them in order, without that wild license which not only makes 
them touch at every point, but causes them to trample on each 
other. 

I cannot help thinking, that they who suppose when the popula- 
tion of America has grown to its full complement it will be exceed- 
ingly difficult to uphold free institutions, have magnified the danger 
arising from that source, or rather, that they have mistaken the influ- 
ence which that circumstance will exert upon the destiny of the 
country. The denser the population becomes, the more will the peo- 
ple be brought into close proximity with each other, and the more 
rigorous will be the control which they will mutually exercise. This 
may be regarded as a law of society which, unless it is countervailed 
by other circumstances, is certain and invariable in its operation. It 
is a wise provision, and one productive of the most salutary conse- 
quences ; the check increases in intensity, in proportion to the need 
which we have for it. More tranquillity prevails among the European 
communities, than when their population was one third or one fourth 
of what it is now. To refer to the general progress of civilization 
would be reasoning in a circle, for the progress of civilization is itself in 
great part attributable to the increase of the population. The vast 
empire of China, where civilization has been stationary as far back as 
history goes, seems to show that the density of the population is not 
merely not adverse to the maintenance of tranquillity, but that it is 



CHAP. VIII.] 



OF FREE INSTITUTIONS. 



121 



highly favorable to it. The form of civilization is greatly below what 
exists in Europe and the United States, but it is superior to that 
-which exists in the South American states. 

I know few things better calculated powerfully to arrest our 
attention, than the fact that, during two years (I think 1835 and 1836), 
there was not a single execution in London. London is itself an 
immense community; and that amid such discordant elements, such 
an eternal jangling of interests, such a craving of all sorts of wants 
and desires, so much order and tranquillity should be maintained, is, 
to say the least, a striking fact in the history of society. Nor is this 
state of things an accidental one. The diminution of crime, for a 
series of years before, had been very regular. The convictions for 
murder, and for assaults with intent to murder, were, for a period of 
ten years, commencing with 1816, no more in London than they were 
in New Orleans during the same time. The population of the one 
was not more than thirty-five thousand, of the other a million and a 
half. In the United States, it is in the thinly settled states of the 
west and southwest that outrages are most frequently committed, and 
the authority of the laws set at defiance. Those states, without 
doubt, contain an exceedingly sound population ; but great numbers of 
the profligate emigrate to them, because they know they will be less 
exposed to the surveillance and control of others, than they would be 
amid the fuller population of the older states. If it should be said 
that this state of things is owing to a defective administration of the 
laws, it may be answered that this defect would be cured by a more 
numerous population. Public opinion is the most effectual auxiliary 
in the execution of the laws ; but public opinion is necessarily feeble 
where the settlements are, to a considerable extent, composed of 
wandering adventurers. Those states are rapidly passing through 
the same purifying process which all the others have gone through. 
They will ultimately contain as sound, because they will contain as 
dense, a population as other parts of the union. 

The reason then, why the control which the parts of society exert 
upon each other is more stringent and more active as the population 
increases, is obvious. Individuals, and collections of individuals, are 
placed more completely within reach of each other, and have a more 
immediate interest in each other's conduct. No one can then exercise 
his faculties, or perform any action however insignificant, without 



122 



NATURE OF FREE INSTITUTIONS. 



[book l 



affecting many others. Each individual acts as a sentinel upon his 
neighbor, and thus, through the co-operation of all, the private interest 
of each is rendered as consistent as possible with the interests of all. 

There are then two sorts of control existing in society; the one a 
control on the part of the government, the other of the people upon 
each other. The last is a most important element in the social 
organization at the present day. 

Free institutions give force to both species of control. The prin- 
ciple of equality which pervades them brings individuals into closer 
juxtaposition ; and the check which these habitually exert upon one 
another's behavior not only familiarizes them to the authority of the 
government, but greatly interests them in upholding it, since the laws 
are only intended to accomplish what the great majority of private 
persons are aiming at, but which they are too feeble to effect. 



BOOK II. 



CHAPTER I . 

WRITTEN CONSTITUTIONS. 

The formation of a written constitution is one of the most decisive 
steps which has been made toward the establishment of free institu- 
tions. It implies the exercise of reflection in its highest degree, an 
ability to frame the most comprehensive rules, and to make applica- 
tion of them to the actual affairs of men. Most governments are 
easily enough initiated into the art of governing the people ; but a 
written constitution is a scheme, by which the governors themselves 
are proposed to be governed. The commencement of this very 
important movement is of recent date. We cannot carry it further 
back than the era of the American revolution. For although a few 
examples have been handed down to us from antiquity, and one or 
two attempts of the same kind are recorded in European history, 
prior to 1776, the differences are so numerous, and so fundamental, 
that we are not entitled to range them in the same class with the 
American constitutions. It sometimes happens, that a mere difference 
in degree between two things is so wide as to place an absolute 
distinction between them, and to render them opposite, instead of 
resemblances of one another. The constitutions of antiquity 
confounded what we would characterize as political ordinances with 
the acts of ordinary legislation. This was the case in the code of 
the Roman decemvirs, and it was equally so in the systems intro- 
duced by the Athenian and Spartan lawgivers. One design of a 
written constitution, is to define the boundary between political and 



124 



NATURE AND TENDENCY 



[book II. 



civil laws. For as it is not intended that the two should have an 
equally authoritative character, it should not be intended that they 
should have an equally durable form. This incongruous mixture of 
two things so different was therefore an infirmity. It showed that 
the mind had not yet got so far, as to be able to analyze its ideas in 
matters of government ; no matter whether this analysis is the pro- 
duct of great learning, or whether it is the result of a long course of 
experience. Not to estimate the difference between two things, is 
not to understand the nature of one of them at least ; and so to 
make one, or both, occupy an unfit place in the system which we 
construct. 

This subject has given occasion to very important discussions in 
France, since the establishment of constitutional monarchy: and it 
has sometimes required the efforts of the most enlightened French 
statesmen, to prevent the error I have alluded to from being com- 
mitted in " the charte." Once settle the relative powers of the different 
departments of governments, and the office of the legislative body 
will be plain enough. Its power will be better guarded, and yet will 
be more full, and ample, than it would otherwise be. The varied ex- 
igencies of society, the unforeseen changes which take place in human 
affairs, the slow accumulation of that wisdom which flows from 
experience, all demand, that once the orbit within which the legisla- 
ture is to move is marked out, a large and liberal discretion should 
be given to it in the enactment of laws. 

But that which places the greatest imaginable difference between 
the constitutions of antiquity and those of the United States, is that 
the former were in no sense the offspring of the popular will ; while 
on the contrary, the latter have emanated directly from the people. 
The same may be said of those European states which now have 
written constitutions. Those constitutions have been the gift of 
some self-constituted lawgiver, or have been imposed by bodies of 
men who very imperfectly represented the supreme authority of the 
state. 

The constitutions of antiquity showed clearly enough, that there 
were among the citizens some individuals of contemplative and culti- 
vated minds. But they indicated nothing further. They afforded no 
evidence that these great truths, which lie at the foundation of all 
just and legitimate government, were seized and appreciated by the 



CHAP. I.] 



OF FREE INSTITUTIONS. 



125 



people at large; or rather, they afford incontestible proof to the 
contrary. A conjectural plan of government is as easily drawn up as 
any other composition; which is one reason, perhaps, why many 
otherwise enlightened understandings affect to treat all such works 
very lightly. A constitution which deals in certain preconceived 
general principles, and seeks to mold the affairs of men into a con- 
formity with them, is very different from a system of government 
which undertakes to arrive at the knowledge of fundamental maxims, 
by availing itself of a vast fund of experience and observation existing 
among the people themselves. The American constitutions were for 
this reason a really difficult and arduous achievement. The difficulty 
did not consist in the degree, but in the extent, of intellect necessary 
for the occasion. A plan of government in which the popular will 
has had a direct agency, presupposes a very wide diffusion of intel- 
ligence, and this at once stamps upon the undertaking both a practical 
and a comprehensive character. Lord Somers and his colleagues, 
who took the lead in the revolution of 1689; Benjamin Constant and 
Lafayette, who took the lead in the kindred revolution of 1830, 
were the real thinkers and actors on those occasions. But Hamilton 
and Madison, equally great names, who took the lead in the formation 
of the American constitution, were but spokesmen of the popular 
will. Hence the profound and impressive debates which took place 
at that time in popular assemblies ; and hence the necessity which 
was felt of laying before the public a full exposition of the proposed 
plan of government. The letters of Publius are, in this respect, per- 
fectly unique. No similar production is recorded in the history of 
ancient or modern civilization. 

Some of the remarks I have made are applicable with still more 
force to the attempts which have been made, by individuals of 
ingenious and powerful understandings, to frame schemes of govern- 
ment for a whole people. We might as well tear out of the volumes 
of Plato, Harrington, or Mr. Hume, the plans of a republic which 
they conceived, and ordain them as constitutions, as to call Mr. 
Locke's and the Abbe Sieyes's efforts by that name. 

Nor is there any reason for surprise, that the popular mind, and 
not merely the popular will, should have so direct an agency in the 
formation of a constitution of government, as is manifestly the case 
in America. If the mere addition which a life of the closest study 



125 



NATURE AND TENDENCY 



[book II. 



and the greatest learning, makes to the mind of the highest capacities, 
is not so great as the knowledge which is possessed by the man of 
the most untutored understanding, a fact of which there can be no 
doubt, there is nothing unnatural in the supposition that the 
plainest men, when they are placed in a situation favorable to the 
acquisition and realization of a large amount of political experience, 
should not only be equal to such an undertaking, but that without 
their ce-operation no such undertaking can be understandingly 
executed. 

Some persons, eminent for their intelligence, have occasionally 
hazarded the assertion, that there is no force in constitutions on paper, 
and that we should be as well without them. Admitting that it is 
fair, thus to withdraw the mind from the all-important consideration, 
that a constitution which is the work of the popular mind, marks an 
entirely new era in the history of society; no opinion can well be 
conceived, which is more completely behind the age in which we live. 

The reasoning which has been relied upon to sustain this strange 
assertion, would be equally conclusive to prove that there is no 
force in written laws. And yet it is plain that without written laws, 
society would be a scene of discord and confusion. The occasional 
violation of a constitution would not even help to prove the assertion. 
The laws are repeatedly violated, and yet no one lays his head upon 
his pillow without feeling a wonderful sense of security under their 
protection. Even the English "magna charta," an instrument far less 
comprehensive in its scope, and possessing therefore much fewer 
guaranties, than an American constitution, was repeatedly violated; 
but it constituted a land mark amid all the troubles of the day, and 
the English monarchs were compelled to ratify and reratify it, until 
it acquired a weight and authority which no one was strong enough 
to throw off. 

The precise and definite form which writing gives to our ideas, ren- 
ders it an indispensable auxiliary in reducing those ideas to practice, 
and in spreading their influence over an extensive country. If 
instances are to be found where communities have been governed 
with considerable wisdom, without written constitutions, this is either 
because there has been some approach to one, some resemblance to an 
instrument, which, however imperfect, has acquired the sanction of 
successive generations of men, or such communities have lived in 



CHAP. I.] 



OF FREE INSTITUTIONS. 



127 



close fellowship, have been bound in an intimate alliance with others 
which had written constitutions, and were moreover obliged, by the 
league of which they were members, to owe allegiance to a federal 
constitution. The first is. the case of England, the second that of 
Connecticut and Rhode Island. But all three of these examples 
prove that there is great force in written constitutions. 

A written constitution is a repository of tried and experienced 
truths, with an authoritative sanction accompanying it, capable of 
being appealed to in all times of party conflict, when the minds of. 
men are tormented by the danger of civil commotion, and when every 
means which is calculated to fix reflection, and to steady the public 
mind, is of so much importance to the peace of society. 

In every department of life, it has been found that the collection 
of human experience and wisdom into some visible organ, capable of 
making a sensible and durable impression on the mind, was the only 
way to give a fixed and permanent direction to the actions of men. 
It cannot be otherwise then with civil government, where the body of 
rules which is adopted has this additional advantage, that it is the 
result of a deliberate compact between the members of the community. 
It would be much more reasonable to assert, that there was no utility 
in a system of religious doctrines, or a system of education, in a code 
of jurisprudence, or in the rules which are adopted for the army and 
navy, than to affirm that there is no force in a body of fundamental 
ordinances for the government of the state. 

We may pronounce of a country, in which a written constitution 
has been framed by delegates chosen by the people, that it is from 
that very circumstance placed entirely beyond the reach of monarch- 
ical or aristocratical institutions. A .change in the structure of soci- 
ety, so thorough and so decisive, is absolutely incompatible with the 
existence of either of those forms of government. But this change 
may take place, although the great body of the people are not ad- 
vanced to the highest pitch of intelligence, or to any thing like an 
equal degree of intelligence. The system of common schools has 
existed in New England for more than two hundred years; and yet 
great inequalities still exist, and will forever exist, in the capacities of 
the men who inhabit it. But as there is a certain limit, beyond 
which knowledge must not advance, in order to insure the existence 
of any one of the artificial forms of government ; so there is also a 



128 NATURE AND TENDENCY [book ii. 

limit beyond which knowledge need not advance, in order to insure 
the establishment of free institutions. 

Those rules which govern the interests of large collections of men, 
are never so recondite as those which are obtained by the study of 
the individual alone. And if we examine the history of any of the 
great revolutions which have changed the condition and destiny of the 
human race, it will be found that the leading ideas — those which pre- 
sided over the whole movement — -were the simplest imaginable. Let 
us take, for an example, the protestant reformation. The principles 
with which the great reformer set out, and which were his constant 
weapon from the commencement to the close of the controversy, were 
so plain, so homely, so easy to be understood and handled by the 
unlettered man, that men of refined learning were puzzled to find out, 
how it was possible to create so great and so general a movement 
through the instrumentality of such trifling propositions. The public 
debates which took place throughout Germany seemed to turn upon 
mere truisms and puerilities. And yet these apparent puerilities 
could not be battered down by the greatest amount of learning which 
was brought to bear upon them. 

It is the same with all the important and salutary revolutions which 
take place in civil society. The governing ideas are few and easily 
comprehended, because they contain general truths; and the truths 
are general because they have reference to the interests of large col- 
lections of men. A highly intelligent man, who had been a member 
of an American legislature, remarked to me, that " he must give up 
all his notions as to the incompetency of farmers to legislate for the 
community. They have both more sagacity and more information 
than I had at all calculated upon." 

The establishment of constitutional government in the United 
States has given a decided impulse to the public mind in Europe. 
Ten or twelve of the European states have adopted written consti- 
tutions, But none of them rest upon the same firm foundation as in 
America. A written constitution, emanating from the popular will, 
while the government was monarchical or aristocratical in character, 
would be a solicism in politics. Neither of those governments could 
possibly survive the establishment of such an instrument. If not 
immediately annihilated, they must speedily fall to decay. Men, 
whatever their physical strength may be, must at least have a fit 



CHAP. I.] 



OF FREE INSTITUTIONS. 



129 



atmosphere to breathe in. So that we must either say that the 
diffusion of knowledge is incompatible with the solid interests of 
mankind, or that monarchy and aristocracy are incompatible with the 
existence of constitutional government in its legitimate sense. There 
cannot be two inconsistent rules, at one and the same time, for the 
government of a community; the one founded upon the general 
interests, the other upon some particular interests only. One or the 
other must give way; and it is easy to see which will ultimately have 
the advantage, amid the general spread of knowledge which we 
witness in the nineteenth century. Where resides the moral power 
of the community, there also will be found to reside its physical 
power. The maxim, that power is constantly sliding from the many 
to the few, is false in a republic. The tendency is directly the 
reverse. The maxim is true only where the political institutions are 
unfavorable to the development and spread of knowledge, and where 
every contrivance has been employed to render the affairs of govern- 
ment complicated and mysterious in the extreme, and so to impress 
the popular mind with a conviction, not only that it has no right, but 
that it has no sort of ability, to bear any part in them. 

But however imperfect the European constitutions may be, they 
are a great step toward the establishment of regular government. 
No event which has occurred in that quarter of the globe affords more 
signal evidence of the general advance of society. A written consti- 
tution never adds to, but always subtracts from, the power which 
previously existed. It is not only an open recognition of certain 
general principles favorable to liberty, but it is obliged to make a 
definite application of these principles. What was obtained when the 
community was struggling for freedom, can with difficulty be recalled 
when it has arrived at greater maturity. For a written constitution, 
together with the body of new laws which it gives occasion to, acts 
directly upon the manners, diffuses more inquisitiveness and informa- 
tion, and inspires all classes with a greater degree of self confidence. 
The ability to guard the institutions is derived from the influence 
which the institutions have themselves created. There may be still 
more progress, but there will rarely ever be a retrograde movement. 

The French "charte" is the most remarkable of the European 

constitutions. It was wrested from the king. And this indicates, at 

least, that knowledge and liberty have acquired sufficient strength to 
9 



130 



NATURE AND TENDENCY 



[book II. 



make a vigorous protest against the unlimited authority of kings. 
The leading men in the kingdom were obliged to fall in with this 
movement, in order to sustain their own influence, but they have 
contributed, however unwillingly, to strengthen the popular will. 
The " tiers etat," a name which once startled the ear, has become a 
body of acknowledged importance in the state. 

The European governments had all grown by piecemeal. The 
fragments of which they consisted were put together as force or 
accident determined. Not representing the public will, the people 
were at a loss to discover the title which their rulers arrogated to 
themselves. There was no way of solving the difficulty but by having 
recourse to an authority from above. Hence the doctrine of the "jure 
divino " right of kings to rule. The minds of men were then filled 
with all sorts of superstition, and the prince, whose privileges flow from 
so exalted a source, seems alone entitled to place a construction upon 
them. Elizabeth told the English commons that they must not dare 
to meddle with state affairs ; and Charles XII, of Sweden, told the 
senate that he would send his boot to govern them. Constitutional 
government has effected the same revolution in politics, which the 
progress of physical science has produced in religion. Both have 
banished superstition; the one from the domain of government, the 
other from that of religion. The human mind can no more get back 
to the notion of the divine right of kings, than it can get back to 
fetichism and idolatry. 

A popular constitution is necessarily a restraint upon the majority, 
so that that form of government which it has been supposed would 
be most exposed to the inroads of licentiousness, is the one which is 
most strongly secured against them. For as a written constitution is 
obliged to contain an exact distribution of the powers of the various 
departments, the persons who fill those places cannot separate them- 
selves from the rule which created them, and say, because they are 
temporarily and for certain purposes the majority, that therefore they 
are the majority for all purposes and for all time to come. Do as we 
will, the moment we establish a popular constitution, we are compelled 
to afford a substantial security to the minority against the majority. 
It could not be a popular constitution, unless it contained provisions 
for securing the rights of all classes, without reference to the fact 
whether either shall afterward fall into the party of the majority, or 



CHAP. I.] 



OF FREE INSTITUTIONS. 



131 



into that of the minority. And although it is plain that it is physi- 
cally possible to overleap the bounds set up by the constitution, yet 
so firm is the hold which this solemn covenant has upon the minds of 
every one, that the most ambitious and unprincipled men recoil from 
the attempt. When this has become the settled habit of thinking 
among the people, their feelings and imagination come in aid of their 
convictions of right. The constitution becomes a memorable record; 
and the fancy clothes it with additional solemnity. If the altar and 
the throne become objects of veneration in monarchical government, 
the altar and the constitution become objects of equal veneration in a 
republic. In those rare instances, when attempts have been made by 
the state legislatures in America to violate their constitutions, there has 
been a redeeming virtue among the people, which has either compelled 
the majority to retrace their steps, or, by converting the minority 
into the majority, has brought the constitution back to its pristine 
spirit. 

If there were no such instrument, parties would do very much what 
the exigencies of the moment dictated. For how would it be possible 
to argue upon the constitutionality of any measure, when there was 
no constitution in existence. The alarm may be given of a contem- 
plated violation of some fundamental right ; but how can the people 
be made to understand this. A written constitution affords the only 
plain test. Some of its provisions may be the subject of dispute, but 
in the great majority of instances, it will be a clear and most impor- 
tant guide in judging the actions of all the public functionaries. 

A constitution is open to alteration by the same power which 
enacted it. The sovereign authority residing in the people is neces- 
sarily inalienable. It cannot be extinguished, because there is no 
human power superior to itself to have that effect. To assert that 
a constitution is of so sacred a character, that it can never again be 
touched, would be to return to the European notions of government. 
A constitution, however, may provide in what way alterations shall 
be made ; so as to get rid on the one hand of the difficulty which 
would arise from one generation attempting to bind all others ; and 
at the same to secure that the future generation which does make 
alterations shall be the people themselves, and not their rulers. 

All the American constitutions contain provisions of this kind. 
But as it rarely happens that a constitution will require to be entirely 



m 



132 



NATURE AND TENDENCY 



[book II. 



remodeled, a way is provided by which particular amendments may 
be made, without the necessity of assembling a convention. In some 
states the proposed change must be deliberated upon, and agreed to 
by two- thirds of two successive legislatures. In others it is, after a 
vote of two-thirds of two successive legislatures, submitted to the 
people at their annual elections. In Pennsylvania a majority of two 
successive legislatures is sufficient for this purpose. All these plans 
are substantially alike. By the first, it is the legislature which makes 
the alteration. But the members have been chosen by the people, 
with a direct view to the question of change or no change. In Ohio, 
Vermont, and New Hampshire, alterations can only be made by a 
convention, which in the former must be authorized by a vote of two- 
thirds of the legislature ; in the second by a vote of two -thirds of a 
council of censors. But this vote cannot be taken oftener than once 
in seven years. And in New Hampshire the votes of the people are 
taken every seven years, by the selectmen, and assessors, as to the 
expediency of calling a convention. 

The design of all these plans is to secure that alterations shall be 
made in so solemn and deliberate a manner, that there shall be no 
question but what they have emanated from the people. 

In France it is a settled maxim that " the charte " can never be 
altered : that there is no power whatever competent to touch it. This 
seems to savor strongly of the school of Sir Robert Filmer. But in 
peality, it is a disguised departure from the doctrines of that school. 
" The charte" has shaken the power of the king and nobility. The 
danger of alteration, therefore, arises from that quarter. The notion 
of its inviolability is a check upon them ; but it is not a check when 
popular sentiment calls loudly for some additional safeguard to liberty. 
Thus, the charte was remodeled in 1830, when provisions of vital 
importance to the Frenchmen were inserted. 

In Great Britain the maxim is that parliament is the sovereign 
power. But I imagine that no parliament would dare to meddle with 
any of those fundamental enactments which secure English liberty. 
In 1689 it was deemed fit that " the convention," which seated Wil- 
liam on the throne, and passed the celebrated " act of settlement," 
should be composed of the members who had sat in the two preceding 
parliaments. 



chap i.] OF FREE INSTITUTIONS. 133 

Government, like every other human interest, is the subject of ex- 
perience, and therefore capable of improvement. We are bound, 
therefore, in devising a system of civil policy, to avail ourselves of the 
same helps and resources which give strength and security to every 
other institution. 



134 



NATURE AND TENDENCY 



[book II. 



CHAPTER II. 

THAT IN A REPUBLIC, THE GOVERNORS AND THE GOVERNED ARE 
IDENTICAL, AND DIFFERENT. 

Some persons find exceeding difficulty in comprehending how the 
people who govern should be one and the same with the people who 
are governed. The simplest and the most general notion which we 
ever form of government, is that it is an institution established to 
preside over society, to maintain the supremacy of the laws, and to 
resist all efforts from without, to shake and undermine its influence. 
To accomplish this, it would seem to be necessary that government 
should possess an independent authority ; that it should be armed with 
a power which could not be wrested from it, at the very time when it 
was most important to employ it. Self government, or a democratic 
republic, which presupposes that the governors and the governed are 
one and the same, appears then to be a solecism in politics. It seems 
to contain an inherent principle of decay, and on that account to be 
the least eligible form of government which can be adopted. The 
notions which we frame to ourselves on all subjects, but especially on 
politics, are so much determined by the forms of thought which have 
previously existed, that it is always a work of difficulty to break up 
old associations, and to persuade the mind, that any remarkable change 
in the institutions of society can be easily accomplished, much less, 
that it would be both safe and advantageous. 

The actual operation of popular government relieves us from the 
difficulty which has been suggested. For there, parties in the majority 
and minority immediately rise up. And as the former is entitled by 
right and by necessity to the supremacy, an example is afforded at 
the outset, of a presiding power in the state which is distinct from 



i 



CHAP. II.] 



OF FREE INSTITUTIONS. 



135 



that of the whole of society. Thus, if a small number of persons, 
when compared with the entire population, are disposed to be vicious, 
and to violate the private rights of any individual, inasmuch as the 
administration of the laws is deposited with a much larger number, a 
check upon the conduct of the former is created, which operates with 
certainty, in ninety-nine cases in a hundred. And if we suppose, 
that a still greater proportion — a proportion which constituted nearly 
or even quite a majority — were so inclined; still, if the distribution of 
property is such, that the major part of the citizens have some allot- 
ment, some stake in the hedge: their interests will outweigh the 
propensity to commit mischief; and the sense of interest, combining 
with the operation of the laws, after civil government is fairly estab- 
lished, redoubles its authority, and in the course of no very long time, 
innocently beguiles the understandings of all men — the educated, and 
the illiterate, the honest, and the depraved — into the belief that 
there is indeed an inherent power residing in the government, which 
can in no way be confounded with the local and discordant opinions 
which prevail without. 

Nor, even if the unanimous consent of the people were admitted 
to be necessary to the first institution of government, would there be 
any great difficulty in obtaining it. Even the most abandoned men 
shrink from a public exposure of their hearts. Nor, are crimes ever 
committed from habitual disposition, but from sudden impulse, or 
powerful temptation, which cannot well exist at the time when a 
popular convention is deliberating upon the form of government which 
shall be established. Nor, if it were otherwise, would it alter the 
case, since the worst men are as deeply interested in the maintenance 
of the general body of laws, as are the best. They would not be 
able to commit any crime, unless their own lives were protected up to 
a certain point. Their persons would not be safe, as soon as they 
discovered a disposition to commit violence upon others. This is the 
reason why what is vulgarly termed "lynch law," is so abhorrent to 
offenders, as well as to all lovers of law and order. Once established 
as a rule, and the mere suspicion that a crime was committed, or about 
to be committed, would lead to summary punishment; while the 
penalty inflicted, might be out of all proportion to the character of 
the offense. " Give me a fair trial," said a miserable creature, whom 



136 



NATURE AND TENDENCY 



[book a. 



I once knew summarily dealt with. "If I have broken the laws, I 
am entitled to justice." 

Instances have come under my observation, where individuals who 
freely voted for the establishment of a constitution, afterward ren- 
dered themselves amenable to the laws, which were passed in con- 
formity with that constitution. And I recollect two instances of 
individuals, members of a legislative body, who assisted in the enact- 
ment of laws, which punished forgery and perjury with great severity, 
and each of whom was afterward the victim of one of those laws. 
Few men assist in passing sentence upon themselves. But all men 
are, some how or other, irresistibly impelled to create the tribunal 
which is destined to punish them, if they are guilty. 

So far, we have considered government chiefly in its simplest form : 
the government of the people in person. But it is not practicable to 
conduct the affairs of a large state in this way. Almost all the 
ancient commonwealths were of small size. The Grecian states were 
none of them larger than an American county. Attica, the most 
famous, was of no greater extent than Boss county, in Ohio. Indeed, 
city and state were synonymous terms with the Grecian lawyers. By 
the government of a state, they intended the government of a city. 
Even in the Boman commonwealth, the governing power was for a 
long time, in theory, and almost always in practice, confined to the 
walls of the city. 

But when the elective principle is introduced, the machinery of the 
government becomes more complicated. Those administrative officers, 
who were before appointed by the people, are invested with additional 
authority. And the legislative body becomes at once the most impor- 
tant and the most imposing of all the institutions of government. 

There is no good reason why a popular constitution should not be 
established in a simple democracy, as well as in a representative 
government. In both, the minority require to be protected against 
the majority. But the idea of a written constitution does not readily 
suggest itself, unless the state is sufficiently large to occasion the 
introduction of the elective principle into general practice. The fun- 
damental ordinances of the ancient lawgivers were of a totally different 
character, not merely in their origin, but in their purport, from the 
American constitution. They were like the ordinary acts of legisla- 



CHAP. II.] 



OF FREE INSTITUTIONS. 



137 



tion, which are intended to restrain the people ; whereas, one great 
design of a constitution is to restrain the government. 

The adoption of such an instrument, then, may appear to he a 
source of weakness, but in reality it is a source of great strength to 
the government. The individual whose conduct is marked by most 
propriety, no matter whether from internal or external motives, ac- 
quires most power in the circle within which he moves. And a rep- 
resentative government, which moves within the ample but well denned 
jurisdiction marked out for it, acquires unspeakable influence from that 
circumstance. And although the original intention, in framing a 
written constitution, was to supply the grand defect which existed in 
all preceding governments, to wit, the absence of a control upon the 
governors, yet it operates with equal efficacy in restraining the rest 
of society. The existence of such an instrument, then, is another 
addition to the apparatus of the government, giving it an air of 
greater solemnity, investing its proceedings with a more regular and 
decisive authority, and thus contributing practically to separate, in 
the minds of every one, two ideas which are at bottom the same ; to 
wit, the idea of the people as governors, and of the people who are 
governed. ^ 

Various reasons have been assigned for the division of the legisla- 
ture into two branches. The plan appears to have been unknown 
among the republics of antiquity. Where two chambers did exist, 
one possessed powers of a different character from those of the other, 
and therefore the co-operation of the two was not necessary ; or else, 
one acted as a deliberative body merely, with at the utmost the power 
of imitating measures, while the others possessed the legislative power 
proper. Feudal institutions, which gave rise to a baronial nobility, 
seated by the side of growing and powerful cities, introduced the 
scheme as it exists in modern states. The population of the towns 
was of too much importance to be overlooked, while at the same time, 
the barons were too haughty and jealous to permit the representatives 
of those towns to have seats among themselves. The legislative body 
therefore became separated into two bodies, occupying at first the 
same hall, but afterward sitting in two, when the practice of public 
debate took the place of the private conferences, and rendered it 
impossible to conduct the proceedings at different ends of even a 
large apartment. And, although the reason for this arrangement 



138 



NATURE AND TENDENCY 



[book II. 



has ceased to exist, the institution is still preserved. Perhaps we 
may be able to assign to it an office distinct from that which has 
been ascribed to it, and say that, although it has the appearance 
of being more out of place in a democratic republic, where the 
subordination of ranks does not exist, than in any other form of 
government; yet, inasmuch as two chambers render the machinery 
of legislation more complex than one alone, and communicate to the 
government a more imposing character than it would otherwise wear, 
this division of the legislative body may assist, although indirectly, 
in upholding the public authority, and in maintaining order and 
tranquillity throughout the state. It is no objection to an institution 
that it exercises an influence over the imaginations of men, provided 
this influence does not interfere with the useful and legitimate pur- 
poses which were designed to be answered, but on the contrary, 
contributes to carry them out more fully. 

A regular system of jurisprudence would appear to be as essential 
to a people living under the simplest form of popular government, as 
for any other community. The eternal principles of justice are not 
of man's creation ; and they have on that account an authority which 
no man is at liberty to deny or disparage. A code of jurisprudence 
is nothing more than an exposition of those principles, so far as they 
apply to the affairs of society. But the existence of such an instru- 
ment is hardly known until after the state has passed from the sim- 
plest form of democratic rule, and has assumed the character of a 
representative government. The people, when sitting in judgment 
personally, cannot with any convenience make application of those 
principles of law requiring, as they do, the most concentrated atten- 
tion, and the exercise of an undisturbed judgment. Indeed, such 
principles have the appearance of being out of place, where the form 
of government presupposes that there is no superior authority behind 
the judicial magistrates. We hear of the Roman or civil law. But 
no one has ever heard of Grecian law. The organization of the Gre- 
cian tribunal was exceedingly unfavorable to the growth of a regular 
system of civil jurisprudence. The principal court was composed of 
six or eight thousand people ; and the decisions of such a tribunal 
must necessarily be vague and conjectural. Nor did Roman law 
make any progress until the judicial power passed from the popular 



» 



CHAP. II.] 



OF FREE INSTITUTIONS. 



139 



assemblies of the comitia, and became exclusively vested in the repre- 
sentative magistrates, termed praetors. It is not until the reign of 
Adrian, in the commencement of the second century, that jurispru- 
dence began to wear the character of a regular system, such as "it is 
known at the present day. The division of labor was then consum- 
mated. The judicial power was lodged with certain magistrates, set 
apart for that purpose, who were obliged to act upon some fixed, 
general rules. And the collection of those rules into a body consti- 
tutes in great part the foundation of the civil law. In the time of the 
emperors the praetors were not an elective magistracy : but the spe- 
cial character of the duties they were assigned to perform, after a 
beginning had been made, was far more favorable to the growth of a 
regular system than the tumultuous meetings of the comitia. In 
addition to which an absolute government in a highly civilized coun- 
try, is very willing to purchase an unlimited political authority, by 
establishing the exact rules of justice in what concerns the civil 
relations of men. If it were not for some principle of virtual repre- 
sentation at least, neither law nor civilization would ever make any 
progress. 

But what the appointing power effects is accomplished still more 
fully by the elective power. In no country in the world has juris- 
prudence acquired a more regular and systematic character, than in 
the United States. The perfection which it has attained constitutes 
its only objection. All the leading principles on which it reposes 
have been so thoroughly ramified, and rendered so flexible with the 
professional man, in their application to new cases, that the science 
no longer presents the same attraction as formerly, to minds of a 
highly intellectual cast. We may say of the law what has been said 
of mathematics, that it has become an exhausted science. But this 
regular growth of a body of laws, with appropriate tribunals and 
magistrates to administer it, the natural result of the introduction of 
representative government, has a wonderful effect in giving to the 
institutions an appearance of complexity, and in surrounding them 
with an air of authority, which only contributes to carry out the 
design for which they were originally created. These institutions are 
the workmanship of the people. And yet between the people and 
the government is interposed a vast and complicated machinery, diffi- 
cult to break through, and which inculcates and enforces among the 



140 



NATURE AND TENDENCY 



[book II. 



whole population, the notions of right, of obligation, of justice, more 
effectually than the decrees of the most absolute government 
could do. 

The extent of country over which the government presides, assists 
in keeping up the delusion, in persuading people, that there is an au- 
thority residing in the government totally independent of the popular 
will : if that can be called a delusion, which has its origin in the most 
settled principles of human nature, and which only contributes to 
highten the reverence for the laws, and to maintain order and tran- 
quillity throughout the land. 

Even where the territory is only of tolerable extent, government is 
called upon to act, through the medium of a host of functionaries, in 
a great number of particular instances. And, this acting in detail 
repeatedly, and on such an infinity of occasions, without any percep- 
tible interference from without, separates the notion of governmental 
authority from that of the popular will, augments the authority of 
the former, and enables it to exercise an easy empire over the minds 
of men. And yet it possesses this influence, only in consequence of 
being founded upon the popular will, and on the condition of making 
itself eminently useful to society. 

When men are called upon to act openly in face of the world, their 
actions are naturally more guarded and circumspect, than where they 
are free from so wholesome a control. This is the case even though 
the sense of right should be supposed to be no stronger than on" 
other occasions. For when they come to deliberate in public, each 
one finds that the interest of others have an intimate relation with 
his own ; and that, do as he will, their opinions will entitle themselves 
to equal consideration with his. This is the case in the simplest form 
of democratic government, where all the citizens meet together to 
consult upon public affairs. But the effect is increased where the 
elective form of government is established. In the first instance, the 
whole population constitute the public. The actors and the specta- 
tors, the delinquents and the judges, are indiscriminately mixed. 
The restraint therefore is not complete. Hence the tumultuous 
assemblies in the Grecian republics. In the second case, the legisla- 
ture, executive, and judges, together with the whole body of admin- 
istrative officers, constitute at any one time only a fraction of the 
population. The government and the public are separated from 



CHAP. II. J 



OF FREE INSTITUTIONS. 



141 



each other, in order that the last may bear with greater weight, and a 
more defined authority, upon the first. The keenness of the observers 
is hightened, and the conduct of the actors is more circumspect. 
Those who are invested with public trusts of any kind, find that they 
are no longer able to bury their motives and disguise their actions 
amid a vast and heterogeneous assembly. The circumstances in 
which they are placed rouse a feeling of responsibility to other men; 
and this in its turn, awakens reflection, and sense of justice. But, 
the circumstances in which men are placed, constitute a very large 
part of their education through life. And this sense of justice, and 
this habit of reflection, although originally induced by external causes, 
may in progress of time become very important springs of action. If 
all those public functionaries were accustomed to act as simple mem- 
bers of an immense assembly, called together on the spur of the 
occasion, they would be carried away by every temporary delusion ; 
and their actions would seem in their own eyes worthy of condem- 
nation, only when it was too late to correct them. 

This is the reason why what we term public opinion acquires so 
much force, and wears so imposing an authority, in representative 
government. That portion of the population which gives being to it, 
is far more numerous, the public much more extensive, than in any 
other form of government ; while at the same time, the public officers 
of every grade stand apart and distinct from that public, and are 
therefore subjected to a constant and active supervision from without; 
and, if the separation of the two has the effect of hightening the 
sense of responsibility, and increasing the capacity for reflection in the 
former, it has the same influence upon the people. These are also 
placed in new circumstances, which are eminently calculated to pro- 
mote thought and inquiry. And although the persons who fill the 
three great departments of the government, and all the adminis- 
trative officers, are but the agents of the people; yet this people 
now view the conduct of the former from a point different from that 
at which they view their own. They expect and demand better 
things than they would from themselves. And the constant working 
of this principle, in spite of all the tendencies to licentiousness of 
opinion, ultimately communicates, to both the public and the govern- 
ment, more calmness and moderation, and a disposition to view 



142 



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[book II. 



not merely as they are, but as they should be. It frequently happens, 
that on the proposal of an important public measure, popular feeling 
seems to run in one direction, while the representatives of the people 
are disposed to take a different course. The discussion which takes 
place in the legislative body gives rise to discussion out of doors. 
The people and their representatives have time to compare notes; 
and instead of a high state of feeling and exasparation, a greater 
degree of reflection is produced. So that when the final vote has 
been taken in the legislative body, it has received the most cordial 
approbation from the men of all parties. The settlement of the 
Oregon controversy is an instance of this. It is a memorable proof, that 
the question of peace and war is coming to be viewed in a manner 
totally different from what it was formerly : and that the American 
people and government are deeply impressed with the notion, that 
to preserve peace is to maintain civilization. The institutions of 
government in a republic have some other office to perform, besides 
that of giving occasion to the exercise of political power. They 
beget habits of reflection, and disseminate a spirit of inquiry throught 
the land. Nor are those protracted debates which take place in the 
legislature, and which are so much the subject of criticism abroad, 
without their use. They allow time for public opinion to ripen, and 
bring the people and their representatives into harmony with each 
other. Half a century ago, the treaty negotiated by Mr. Jay, al- 
though it was exceedingly advantageous to the United States, created 
a degree of agitation which shook the confederacy to its very center. 
The institutions were then young ; the people had not grown into the 
new circumstances in which they were placed. Time, and the conse- 
quent increase of population, which it was predicted would develop 
in ten-fold strength, the mischiefs then experienced, has had a con- 
trary effect. A dispute which, in 1795, may have kindled a bloody 
and unprofitable war was, in 1846, easily adjusted upon the same 
principles on which sagacious men of business act, in settling their 
private controversies. 

In a democratic republic of considerable extent, the electors are so 
numerous that each feels himself like a drop in the ocean. So that 
the more the number of active citizens is increased, the greater is the 
power of the state, and yet in the same proportion is the importance 
of each individual diminished. The governors and the governed are 



CHAP. II.] 



OF FREE INSTITUTIONS. 



143 



in reality one and the same ; but so exceedingly small is the share of 
influence which falls to each person, that every thing seems to go on 
without any co-operation on his part. The movements of the politi- 
cal machine seem to be directed by an unseen hand, and to be 
conducted with as much regularity and precision as in the most 
consolidated governments. The difference between the two cases is, 
that in the former it is a mere illusion, while in the last it is all 
reality. But the illusion which is practiced upon the imagination, 
instead of detracting from the weight which the governed possess in 
the character of governors, adds greatly to it. Each one of the citizens 
is of importance ; and yet if it were possible for him realize this — to 
believe that he was of so much consequence, that his participation in 
the government was necessary to the general weal — public affairs would 
meet with constant hindrances, instead of proceeding with order and 
regularity. It is because each one does act, and yet so acts that his 
voice appears to be drowned in that of the public, that so much alert- 
ness and energy are combined with so much prudence and circumspec- 
tion in the management of public affairs, and that one of the most 
difficult problems in government — that of conciliating the rights of 
each with the interests of all — approaches as near solution as, humanly 
speaking, is possible. It is in those countries where the electors are 
few, that the government feels most apprehensive, and is in danger of 
the most frequent revolutions. So that so far is the notion, that the 
governors and the governed may be one and the same, from being a 
paradox in politics, the more completely we succeed in practice in 
carrying it out, the more secure is the government, and the more 
prosperous and powerful are the people. 

The same sense of feebleness and insignificance which each citizen 
feels as an elector, is more or less experienced by him when he desires 
to be a candidate for office. Although the elective form of govern- 
ment has the effect of multiplying the public employments, yet these 
are after all so few, when compared with the great number of persons 
who are eligible to them, that not one in a thousand dares flatter 
himself that he will be the successful candidate, or if he is, that he 
will be able to retain his place beyond the short period for which he 
is at first elected. This has one good effect. In spite of many 
untoward influences, acting in an oppose direction, it lessens the self 
importance of individuals, and puts every one on his good behavior. 



144 



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[book II. 



Thus, in a republic, men demand that the utmost equality should 
prevail. They establish free institutions, and thus open the way to 
all the offices and emoluments in the state. But they have no sooner 
done so, than they find themselves crowded and incommoded in every 
effort to acquire the object of their ambition. If they lived under a 
monarchical or aristocratical government, they would have been 
obliged to contend with those who had the advantages of rank or 
fortune on their side. Those advantages are now annulled, but the 
number of those who are eligible to offices is multiplied more than 
a hundred fold, and the obstacles in the way of acquiring them, 
although of a very different kind, are yet fully as great as in any other 
form of government. But those institutions which have raised up so 
many barriers to the ambition of all popular candidates, and con- 
tracted their hopes and expectations within the narrowest possible 
dimensions, are the workmanship of the people themselves. They 
have neither the right, therefore, nor any the least disposition to 
quarrel with its operation. This is one reason why in the United 
States the profoundest tranquillity prevails after the elections. Up 
to the time when they are held all is excitement and agitation. But 
they are no sooner closed than the whole population seeks repose. 
The same institutions which extend liberty to all, establish the empire 
of public opinion which, representing the sentiments and interests of 
all classes, presses with an irresistible weight upon the whole com- 
munity, giving security to the government, and contentment to the 
people. All is brought about by the votes of a majority of the 
citizens, and to this majority all parties are habituated, by a sense of 
interest as well as from the necessity of the case, to pay unlimited 
deference. 

Thus, although the electoral franchise is extended to the utmost, 
so that the government is literally wielded by the people, yet between 
the people and the organized authority of the state there is inter- 
posed a machinery which, as it is viewed by each individual, has an 
air of sanctity and importance which gives additional force to the 
public will. It is all allusion. The institutions are the direct and 
legitimate offspring of the popular vote. Each citizen contributes to 
the formation of public opinion ; but once it is formed it represents a 
whole, and presses with an undivided weight upon each. So each 
individual of the majority contributes to make up the million and a 



CHAP. II.] 



OF FREE INSTITUTIONS. 



145 



half of votes which decide the election of the American president. 
But that majority is then viewed in the aggregate, and so acquires an 
easy empire over the imaginations of all. 

But this is not all. As it is only a small number of the people 
who can fill the public offices at any one time, as it is a still smaller 
number who can ever succeed to the highest, the government and the 
people seem to be still more separated from one another. All the 
public officers are mere agents of the people. But they are as one to 
thousands. They are set apart for the performance of special duties, 
and are all clothed with a greater or less degree of authority. 
Although chosen for short periods, and constantly watched by the 
searching eye of public opinion, yet the separation is made, and this 
is sufficient to impress upon the laws an air of authority which com- 
mands respect from the whole population. Moreover there is no time 
when the public offices are vacant. The persons who conduct public 
affairs are continually shifting, and yet the government seems to be 
immortal. There is nothing more worthy of admiration than those 
numberless contrivances which exist in society, by which a system of 
compensations is established, and the irregularities of one part are 
corrected by an unforeseen influence in another. The process is notice- 
able in the individual man, and is equally observable in that 
collection of men which we denominate a community. 

I do not see why so great difficulty should be felt in conceiving that 
the people who govern and the people who are governed may be one 
and the same, when the principal design of civil government is to 
bring out and to represent those qualities which are common to all. 
The individual may crave many gratifications, and pursue a great 
number of ends which appertain to his private interests. These may 
not interfere with the public weal; they may even contribute directly 
to promote it. But wherever there is a conflict, inasmuch as all have 
a right, if one has, to run athwart the public interest, while at the 
same time the attempt by all to exercise the right would annul it for 
each, it becomes a matter of necessity, and does not altogether depend 
upon reflection, that all learn to distinguish more or less carefully 
between those interests which are peculiar to each and those which 
are common to all. 

But although it is not left to reflection to make the distinction in 
the first instance, yet, a3 reflection is powerfully awakened by enlarging 



146 



NATURE AND TENDENCY 



[book u. 



the sphere of popular rights, it has a great deal to do with the matter 
afterward. In the great majority of mankind the formation of habits 
of reflection must necessarily depend upon the exercise which their 
minds receive from the daily occupations which engage them. The 
contrivance of means toward the attainment of the ends they are in 
pursuit of, the balancing of advantages against disadvantages, and 
the anxieties of all kinds which are consequent upon this employment 
of their faculties, makes them reflective in spite of themselves. It 
has been observed that the Americans are the most serious people in 
the world. And the remark is undoubtedly just. They are not the 
gravest, but they are the most serious, people. For there is a very 
wide difference between gravity and seriousness. The former may be 
the result of vanity, or dullness, or a frigid temperament. The last 
always implies thoughtfulness. It is a fine remark of Schiller, that 
the serene and the placid are the attributes of works of art, but that 
the serious belongs to human life. 

But in a democratic republic, the field of human life is more 
thoroughly laid open than it is any where else. All the ordinary 
motives to reflection are increased, because the objects about which 
reflection is employed are multiplied. Individuals are thrown more 
upon their own resources. Each has more to do, more to quicken 
his exertions, more to kindle hope, and yet to sadden with disappoint- 
ment. When we look over the vast agricultural population of the 
United States, and observe that it is almost entirely composed of 
proprietors, the reason why there is so much activity and yet so much 
reflection, so much stir and yet such perfect tranquillity, is apparent. 
Proprietors are charged with the entire management of a business 
which, in other countries, is divided between two or three classes. 
They are rendered thoughtful and circumspect, because they have 
so much to engross their attention and to tax their exertions. If the 
slaves of the south did not belong to a race decidedly inferior to that 
of the white man, it would be the highest wisdom to manumit them. 
The abolition of slavery would have the same effect as the abolition 
of the laws of primogeniture. It would melt down large properties 
into farms of a reasonable size. The number of proprietors would 
be greatly increased, and so would the number of those who would 
be trained to habits of independent exertion. The agricultural popu- 



CHAP. II.] 



OF FREE INSTITUTIONS. 



147 



lation of the United States are the conservators of the peace, and 
the great balance wheel of the constitution. 

* In a country where free institutions exist, not only is the sphere of 
individual exertion enlarged, the amount of business transacted by 
private individuals increased, but the interests which are common to 
all are also increased. If the effect were only to animate the cu- 
pidity of individuals, to sharpen the appetite for self gratification, 
and thus to nourish an universal egotism, it would run counter to all 
the ends for which civil government is established. But we cannot 
well enhance the importance of any one's private business, without 
placing him more in connection with others, compelling him to co- 
operate in their exertions, and causing them in their turn to be 
instrumental in his. If, in America, the rural population is for the 
most part composed of proprietors, and in the towns, the trades are 
thrown open to all, and not confined to colleges of artizans, there 
must be a constant tendency toward the creation of a system of 
common interests, since a great majority of the people have so deep 
a stake in the protection of property, and in the maintenance of those 
laws which guarantee personal liberty. Governmental regulation, of 
one kind or another, becomes more and more necessary. And this 
necessity is realized by a very great number of people. So that 
although men escape from the restraint which the artificial forms of 
government impose; they find themselves, when living under free 
institutions, surrounded by all sorts of restraints. The great differ- 
ence between the two cases is, that in the last, the restraint is 
imposed for the common benefit of all, and with the free consent 
of all. 

But this does not prevent the operation of that illusion to which 
I have constantly referred. Government has a vast and complicated 
business to transact, ever increasing with the increase of the popula- 
lation, so that the management of public affairs, in the single state 
of New York, is far more intricate and weighty than it was in the 
great empire of Charlemagne. The intervention of the governors 
stands out in bold relief, as something distinct from, and totally inde- 
pendent of, society. The people of that state created their govern- 
ment, and lend it a free and unanimous support. And yet, there is 
hardly one of them, perhaps, on hearing pronounced the words " people 



148 



NATURE AND TENDENCY 



[book II. 



of the state of New York " in a simple indictment, "but what feels as 
if an immense but undefinable authority was impending over them. 

The property which elective government possesses beyond any 
other, of representing those interests which are common to the whole 
population, has this further effect : it tends to correct the idiosyn- 
crasy of individuals. So that, contrary to all expectation, there is 
more sameness, more uniformity of character, among the American 
people than among any other. In other countries the inequality of 
rank, the inequality in the distribution of property, together with 
innumerable influences springing from these, produce the greatest di- 
versity of character. The Americans enjoy more freedom than any 
other people ; but if the structure of society is such that all are obliged 
to conform to some common standard, this freedom will simply termi- 
nate in rendering the manners and modes of thinking of all more alike. 

Foreigners, in noticing the commanding authority which the will of 
the majority impresses upon American society, object to it, and even 
liken it to the awe which is inspired by monarchical government. But 
the two things are of an entirely different character. That majority 
after all reflects pretty much the substantial interests and the lead- 
ing opinions of all. It could not be a majority of the people, if it 
did not produce this effect. Parties may afford to magnify their 
respective differences, if the only effect is to set in a more striking 
light the numerous points of agreement which exist among them. 
Moreover, if the superstitious submission which prevails in a monarchy 
contributes to fortify monarchical institutions, the authority which 
public sentiment exercises in a republic has a mighty efficacy in giv- 
ing force and durability to free institutions. It is very true, that if 
in the United States any one is so wicked, or so unwise, as to enter- 
tain views favorable to the establishment of monarchical or aristo- 
cratical government, he dare not give utterance to them. But it is 
very certain that this species of despotism which is exercised over 
the minds of men, by causing public sentiment to run in one channel, 
places the institutions and the manners in harmony with each other, 
and gives strength and consistency to the first. 

Thus, under whatever aspect we may view representative govern- 
ment, the same idea presents itself of an invisible authority residing 
in the state ; which only represents the will of the people ; and yet, 
in the imaginations of all, the high and the low, the rich and the poor, 



CHAP. II.] 



OF FREE INSTITUTIONS. 



149 



is clothed in a form which exacts as unlimited obedience to the laws 
as any other government. Perhaps this phenomenon is only a mani- 
festation of that tendency which the human mind constantly discovers, 
of figuring to itself some ideal standard of law and justice, which, 
although it may never be attained, yet acts as a powerful regulative 
principle in controlling the actions of man. This ideal cannot be 
found in the partial and half-formed opinions of individuals. It is 
therefore endeavored to be obtained from that character of unity 
which the collective authority of all stamps upon society. We may 
occasionally notice something of the kind, even in the artificial forms 
of government, where the prince has pushed his authority to such an 
excess as to rouse a general popular sentiment for the time being. 
During the celebrated three days in Paris, a rumor was given out, by 
the leaders of the popular party, that a provisional government was 
formed. Sentinels were stationed before one of the hotels, where 
La Fayette, General Gerard, and the Duke de Choiseul met ; and 
when any one came to the door, these sentinels would say, the gov- 
ernment is in session. This idea of a government, the historian says, 
gave ten-fold force and energy to the popular cause, and decided the 
revolution in its favor. But in the democratic republic of the United 
States, this notion of government, this abstract representation of law 
and justice, has a legitimate foundation. It therefore takes firmer 
hold of the imaginations of men, and prevents the occurrence of those 
dreadful commotions which have convulsed France and other coun- 
tries. It not only prevents any rival nation from springing up ; it 
prevents any rival institution from planting itself in the country. 

There is an institution in America which is something new in the 
history of the civilized world, and which proves with what facility 
the notion, of the governors and the governed being one and the 
same, may be carried into practice. The religious establishments 
are all supported by the voluntary contributions of the respective 
congregations. It was a prevailing idea at one time, even in the 
United States, that if the state did not take religion under its own 
care, the religious sentiment would fall to decay. Entirely the re- 
verse has been found to be the case. There is no country in the 
world where the attention to religion is so marked and so universal as 
in the United States. The sum which is voluntarily contributed is 
greater than is collected in any European government, except Great 



150 



NATURE AND TENDENCY 



[book II. 



Britain ; and the amount which is paid to those who perform the actual 
■duties is larger than in any other, without any exception whatever. 
So far from infidelity overspreading the land, and every one doing 
what seems right in his own eyes, the restraint which religion exer- 
cises is more manifest than any where else. Society is singularly ex- 
empt from the scornful hate and the pestilential breath of the infidel. 

In this instance the governors and the governed are the same; the 
institution is on an exceedingly large scale, for it embraces a great 
majority of the population. And the interests with which it has to 
do are of unspeakable magnitude, as they involve all our hopes here- 
after, and constitute the chief ties by which society is held together. 
For religion lies at the foundation of all our notions of law, and 
justice. Nor is there the last reason to believe that free institutions 
can be permanently upheld, among any but a religious people. 

It is curious to note the working of this principle, that the gover- 
ned may govern themselves, in some of its minute ramifications. 
There was a custom in Connecticut at one time (probably still exis- 
ting), which permitted juries in all cases to retire to consider of their 
verdicts, unattended by any officer charged to keep them together. 
When the judge of the federal court first visited the state for the 
purpose of holding a term, he was startled at this custom, and was so 
convinced that the laws could not be impartially administered under 
it, that he expressed a determination to banish it from the tribunal 
over which he presided. But a previous residence in the state would 
have satisfied him, that the verdicts of juries in no part of the world 
were more free from suspicion — more unexceptionable in every re- 
spect — than in Connecticut. Too active an inquisition into the ac- 
tions of men, frequently puts them upon doing the very things which 
were intended to be prevented. 

There is a controversy depending in England at the present day, 
between the bench and bar on one side, and the press on the other. 
The press undertakes to report the proceedings of the courts in im- 
portant public trials, while they are in progress ; and the bench and 
bar deny the right to do so, maintaining that such a practice is 
calculated to forestall the public mind, and to influence the verdicts 
of juries. This controversy commenced, or at any rate assumed a 
threatening aspect, in the time of Lord Ellenborough. That emi- 
nent judge, anxious, no doubt, to hold the scales of justice with an 



CHAP. II.] 



OF FREE INSTITUTIONS. 



151 



even hand, gave it to be understood, that unless the practice was de- 
sisted from, the most severe and exemplary measures would be 
adopted. This was repeatedly proclaimed during the trial of some 
very important criminal cases : but I believe without effect. Now I 
do not pretend to say which side is in the right, relatively to an 
English population : but I do not believe that any harm has resulted 
in the United States, from the first publication of similar trials, 
during their progress through the courts. As all trials are public, in 
America as well as in England, whatever is transacted within the 
walls of the court house is immediatedly spread abroad by the multi- 
tude of listeners who are present. And as, from imperfect apprehension, 
want of tact, or a variety of other causes, representations widely 
differing from each other will be made of the proceedings, the publi- 
cation by a journal, which employs a reporter, for the purpose of 
taking down the evidence, so far from prejudicing the public mind, 
and turning the course of justice aside, may contribute to correct all 
the erroneous notions which are afloat. It may be laid down as an 
invariable maxim, that the good use of an institution will be in pro- 
portion to its constant and familiar use. 

It is at a comparatively recent period that the comparison of hand- 
writing has been submitted to the jury. The old rule which deferred 
the examination to the court exclusively has been changed, and the 
reason assigned for the change is that the persons who composed the 
jury formerly could not write. As this is no longer the case, the 
court now derives great assistance from the judgment which is exer- 
cised by the jury on this difficult matter. Juries are able to govern 
themselves, although they are no longer subjected to the rigid control 
of the court. 

The freedom which females enjoy, is another remarkable trait in 
American society. In Roman catholic countries, indeed in protestant 
European communities, nothing of the kind is observed. It may 
have been supposed, proceeding lamely from a knowledge of what had 
been, to the conclusion what would be, that so much liberty would 
give rise to great licentiousness. The reverse is the case. In no 
country is the purity of the female character better preserved. In 
order to give to the laws of morality a controlling influence upon our 
actions, it seems indispensably necessary that we should share to some 



152 



NATURE AND TENDENCY 



[BOOK II 



degree, even in youth, in the responsibility which attaches to those 
actions. And this can only be accomplished by a delicate mingling of 
the two things, freedom and restraint. 

The liberty of the press is another example. It was once predicted 
that a press without a licenser would produce infinite licentiousness in 
conduct and opinions, and that the authority of the government, if 
not violently overturned, would be secretly undermined by the inces- 
sant action of so powerful an agent. All such conjectures have been 
entirely falsified. In no country is the press so powerful for good, in 
none is it so powerful for evil, as in the United States. If it 
were strictly guarded, and only circulated opinions by stealth, the 
appetite for change would be constantly whetted. The most startling 
doctrines would gain credence, simply because they were forbidden. 
By abolishing the office of licenser, the monopoly of the press is broken 
down. Opinions are harmless, because being free they mutually 
correct each other. Great multitudes of persons pride themselves 
upon holding opinions the most adverse to the public safety, when it 
is a privilege to promulgate them, whether that privilege is conferred 
by the laws, or is only obtained by stealth. Take away the privilege, 
and the appetite for all sorts of dangerous novelties gradually wears 
itself out; for what is novel to-day becomes threadbare to-morrow, 
and juster and more sensible views, on all subjects, will be more 
likely to make their way among the whole population, because the 
disturbing influence of the passions will be less, instead of greater. 

If any one supposes that . it has been any part of my design to 
inculcate the notion, that free institutions are a panacea for all the 
evils which are incident to society, he will be greatly mistaken. No 
one can be more pressed down with a conviction of the vices and 
infirmities which cling to human nature, whatever may be the form in 
which the institutions are cast. All I have aimed at is to show that 
the democratic form of government is free from the objections which 
have been made to it ; that, without pretending to any thing like 
perfection, it is, on the whole, the best form of civil polity which can 
be devised ; the one which is best fitted to bring out the greatest 
amount of good qualities, both in the individual and the citizen. 

I have, therefore, endeavored to show that representation, which in 
the beginning is an institution by the people, comes, in process of 



CHAP. II. J 



OF FREE INSTITUTIONS. 



153 



time, and through the instrumentality of causes which are immutable 
in their operation, to be an institution over as well as by the people. 
That it is the people who give being to this whole system, and that 
thus the governors and the governed may be identical and yet 
different. 



154 



NATURE AND TENDENCY 



[BOOK IE. 



CHAPTER III. 

SOVEREIGNTY OF THE PEOPLE IMPORT OF THE PHRASE. 

It is certain that free institutions do not render men so perfect but 
what they may commit great mistakes in the exercise of the privileges 
which are committed to them. It is equally true that in that form 
of government men are often led away by the grossest delusions, and 
are persuaded even to travel beyond the bounds which the great law 
of morality has prescribed. The term " sovereignty of the people" 
is one of those which has been subjected to a most fatal miscon- 
struction. Because, in a republic, the political authority of the state 
has been removed from the insecure foundation on which it formerly 
rested; because the will of the people has been substituted in the 
place of hereditary rule; it is sometimes supposed that this new 
power possessed unlimited attributes, and that it was free to make 
any disposition which it pleased of the rights of any part of the 
community. The "jure divino" right has been repudiated, and yet 
another maxim has risen up in its place equally terrible to humanity, 
and destructive of the very interests which free institutions are 
designed to protect. There is no power on earth, the people no more 
than the prince, which can be conceived to be absolved from the 
eternal principles of justice. To assert the contrary would be to 
deny the existence of some of the most fundamental laws of our 
being — of those laws which stamp upon all human actions a character 
of right or wrong. Such laws are not mere arbitrary rules, without 
any dependence upon some governing principle, and free at any time 
to be taken up or laid down. They are a part of our original consti- 
tution, as much so as any of our intellectual faculties or appetites, 
but with a far higher authority. There is a rule then which is 



CHAP. IN.] 



OF FREE INSTITUTIONS. 



155 



superior to what is sometimes called the will of the people, and which 
obliges them to the observance of rectitude, with as as high, although 
with no higher, authority than it binds the consciences of private 
individuals. 

Right and physical power are not correlative terms. Right and 
moral power would be more nearly so. It is supposed, however, that 
there is a wide distinction between the conduct of individuals and 
of a whole nation ; that inasmuch as the former may be restrained by 
positive laws, they have neither tjie power nor the right to commit 
injustice : that on the other hand, as there is no power actively to 
control the will of the people, they have from the necessity of the 
case both the power and the right to do as they please. But, some 
things are here too hastily taken for granted. There is, properly 
speaking, no way of preventing the actions of individuals, any more 
than of a whole people. Actions may be punished after they are 
committed, but the most absolute monarch is obliged to permit his 
subjects to be free until they have acted. A physical necessity com- 
pels him to do so. All the people cannot be the goalers of all the peo- 
ple. If, then, because the state is at. liberty to do as it pleases, it 
has the right also ; for the same reason, private persons have the right 
to commit murder, or any other heinous offence. If it should be said, 
that as the latter may be punished afterward, this at any rate places 
an entire distinction between the two cases, the truth of the propo- 
sition might be admitted. But it would nevertheless be a surrender 
of the whole ground of argument, by making the distinction an inci- 
dental, instead of an intrinsic and necessary, one. 

But even here, there is an important step in the reasoning, which 
is taken too hastily. Nations may be, and frequently ( perhaps I 
should say, universally) are, punished for their misdeeds. Sometimes 
they are punished by other nations. At others they are cruelly 
scourged by intestine divisions. France, in the reign of Louis XVI, 
was visited by the heaviest misfortunes ; and these misfortunes may 
be traced directly to the corruption, which had spread like a leprosy 
over those classes of society which had the management of public af- 
fairs. These misfortunes first fell upon the royal family, the nobility, 
and the clergy; because the abuses committed in those quarters 
stood out in bold relief, and shocked the common sense of mankind. 
The people, whom the general progress of knowledge had silently 



156 



NATURE AND TENDENCY 



[book II. 



lifted into some importance, began to feel their own strength. But 
they put forth this strength by committing all sorts of enormities. 
And they, in their turn, were visited by the most frightful calamities : 
1st, by foreign wars, occasioned by the excesses of the revolution ; 
2d, by furious parties in the bosom of France which, after revenging 
themselves upon each other, delivered over that fine country to the 
wildest uproar and confusion ; until at length these parties were them- 
selves extirpated by a military despot. And this new power, having 
fulfilled the end for which it was appointed by Providence, was sud- 
denly overthrown; leaving behind a warning to all nations, that 
neither kings nor people can commit crimes with impunity. Charles 
I, of England, and his infatuated ministers, were punished by the 
people ; the people were then punished for the violence of which they 
were guilty, by the re-establishment of the royal power in the full plen- 
itude of its authority. James II persuaded himself that this counter 
revolution had lasted long enough to show that the prerogatives of 
the crown were consolidated for all time to come, and he acted upon 
this belief. He and his adherents were driven into exile ; and it was 
not until all orders of men abjured the maxim, that might gives right, 
that any approach was made toward the establishment of regulated 
freedom. 

Illustrations might be drawn from the history of the United States, 
though in that country they are not exhibited on any thing like so 
large a scale, because the American people have never imagined that 
they possess the omnipotent authority attributed to them by slavish 
demagogues. There is a watchfulness and circumspection now visible 
in the conduct of nations, the result of the growing reflection of the 
age, which holds them back when they are about to leap too fast, and 
so prevents the occurrence of a world of mischief. But whenever 
the legislatures of the American states, acting upon the assumed will 
of the people, have betrayed the trust confided to them, and passed 
laws which infringed the great rules of justice, misfortunes of one 
kind or another have been the invariable consequence. I believe, if 
any one were to set himself upon making a searching and critical 
examination into a subject, which at first sight seems to be confused 
and mystified by the great variety of agencies which are simultane- 
ously at work in society, it would be found that nations are even 
more certainly punished for their misdeeds than individuals. 



CHAP. III.] 



OF FREE INSTITUTIONS. 



157 



But it may be said, in reply to these views, which if true are of 
so great importance, that when calamities are the consequence of the 
unlawful acts of governments, or people, great numbers of innocent 
persons are involved in the suffering which overtakes the guilty. But, 

First, This is no answer to the argument, which is, that the guilty 
are sure to be punished, sooner or later. 

Second, The same circumstance occurs in the punishment of private 
individuals. We cannot put to death or imprison any man, without 
afflicting more or less numbers of persons who are dependent upon, or 
in some way connected with, him. We cannot do so without frequently 
casting a blight over the reputation and happiness of family and 
friends. This is an invariable dispensation of Providence. And it 
is doubtless so ordered, because in every such instance, some shadow 
of blame or reproach, although not immediately visible to the public 
eye, does in reality fall upon persons who are not openly guilty, or 
not guilty of the same identical fault. 

The maxim, "the king can do no wrong," has been ingrafted into 
the monarchical constitutions of Europe, because it has been supposed 
that such governments were founded upon opinion. In other words, 
as the authority of the prince is a fiction, it is necessary to prop and 
support it by a fiction. Wherein, then, will a nation be the gainer 
by the establishment of a democratic form of government, if it shall 
be declared that the people can do no wrong. It will be to maintain 
that their authority is a fiction, and that it can only be upheld by a 
fiction. Human affairs will be a prey to as much disorder as ever. 
For as the people can never, in any country of even tolerable extent, 
personally take part in the public administration, society will be ruled 
by factions. And the maxim, that right and power are convertible 
terms, will be made to defeat itself in practice, by substituting, in the 
place of the will of the people, the will of a mere fraction of the 
state. I believe, that the greater the amount of power which is 
communicated to a whole nation, or to speak with more precision, the 
greater the proportion of the population by whom political power is 
exercised, the greater will be the* probability that the laws will be just 
and wise, and that their administration will be impartial ; and " vice 
versa," the fewer the number of citizens who possess political rights, 
the less the probability that the course of legislation will be charac- 
terized by an observance of the great principles of justice. 



158 



NATURE AND TENDENCY 



[book II. 



When the whole authority which appertains to government is con-- 
centered directly or indirectly in the people, as in the American 
commonwealth, the national power is the strongest; for then, not 
only is the will which moves the strongest, but the instruments by 
which it moves are most readily subservient to a common end. Such 
a community, if it chooses to put forth its strength, is equal to almost 
any achievement. If it never does exert its power to any thing like 
the extent of which it is capable, it is in consequence of the self- 
limiting tendency which great popular power invariably has. For, 
consider for whom, and upon whom, this power is to be exercised. 
It is not enough to consider by whom it is exerted, without taking 
into account the manner in which it is obliged to operate, as we would 
do in the case of any other government, whose character we were 
desirous of sifting. 

Now in a democratic republic the laws are made by the people, and 
for the people, and they act directly upon the people. And when 
this is the case, it becomes (not impossible to be sure, but) exceed- 
ingly difficult, to consult the interests of the few, to the prejudice of 
the many. The theory of such a government is, that the common 
interests of the whole community shall be consulted. But what does 
this phrase, common interests of the whole community, mean. It 
signifies, undoubtedly, that the rights of all the citizens shall be 
equally guarded and respected. It is where the privileges of A or B 
are violated for the benefit of C or J), that we say injustice is done to 
individuals. It is when the interests of one body of men are tram- 
pled upon for the advantage of another body, that injustice upon a 
still larger scale is committed. So that if the government is so con- 
structed, as not merely to give the ability but to render it the interest 
of the law-giving power to protect the rights of all, the probability 
is greatly increased, that tie rule of right will be the standard, that 
the laws will be in accordance with the eternal principles of justice. 
Not because men, living under such a government, are naturally 
more disposed to the observance of rectitude than other men; but 
simply, because there is no way by which any considerable number of 
people can obtain justice for themselves, but by consenting that 
justice shall be administered to others also. It is a circumstance of 
great importance, however, that although there may be no original 
difference between men in this respect, and that human nature is 



CHAP. III.] 



OF FREE INSTITUTIONS. 



159 



strictly the same every where — the same in Massachusetts and Ohio, 
as in Italy, or Turkey — yet that the habit of living under such insti- 
tutions for any considerable period, and the consequent experience of 
the unspeakable benefits which in the long run accrue to every one, 
contribute powerfully to fortify men in the pursuit of the rule of 
right, to incline them spontaneously, and not merely upon compulsion, 
to act correctly ; and thus to raise the general standard of the man- 
ners, as well as that of the laws. And although minds which are 
disposed to look upon the dark side of every thing, or minds which 
are fretful and discontented, because they cannot jump immediately 
to the fulfillment of all their desires, or realize some preconceived 
theory of their own, may make all sorts of objections to such a con- 
stitution of government ; yet it is not the least of the excellences of 
such a system, that it possesses the two-fold property of allowing the 
fullest latitude to the expression of private discontent; and yet of 
controlling it in such a manner that it shall do no harm to any part of 
the machine. 

Thus, the more thorough the establishment of free institutions, the 
greater is the chance for the maintenance of just laws and the preser- 
vation of public tranquillity ; for the interests of each become more 
nearly identical with the interests of all, and the rights of each are 
only a reflection of the rights of all. But we must distinguish 
between a people who have a democratic character and democratic 
institutions, and a people who have democratic opinions only. The 
last may rush headlong into all sorts of excesses, and with difficulty 
escape the yoke of the most galling tyranny. The first is protected 
from such calamities, because it is the capacity for freedom, and not 
the possession of it, which is able to effect an advantageous distribu- 
tion of the political power of the community. The one was the 
condition of France during the revolution, the other is that of the 
United States. 

I have spoken of a democratic republic as the form of government 
in which the greatest amount of power resides. And persons who 
are captivated by appearances may suppose that this is a mistaken 
view. It may be argued, that the United States have never put 
forth any thing like the amount of power which has been wielded 
by Great Britain, or France. But the possession and command of 
power are not the same with the actual exercise of it. I suppose, 



160 



NATURE AND TENDENCY 



[book II. 



that if we could imagine the American republic to be animated and 
borne along by some one predominant idea, as was the case with 
France, and England, in the gigantic wars of the French revolution, 
more strength, more resources, and a greater degree of enthusiasm 
would be called into requisition, than was the case in either of those 
instances. My argument has been purposely directed to show that 
where the greatest amount of power resides in the nation, it will 
necessarily be attended with a self-limiting tendency; that the inca- 
pacity, or rather the want of inclination, to exert itself will continue 
no longer than is proper; that if the solid interests of the state 
demand military effort, it will be made ; and that if this species of exer- 
tion does not become the habitual practice of the nation, it is because 
the greater the power, the more it is drawn into a direction favorable 
to the development of the interior interests of the state, and unfa- 
vorable to the concentration of power in the government alone. In 
other words, if we would carry national power in its genuine sense to 
the highest possible pitch, we must make every man a citizen; but 
by so doing we render the wanton and useless expenditure of this 
power inconsistent with the common welfare, and therefore inconsis- 
tent with the maintenance of just and equal laws. If we were to 
suppose the United States attacked by a confederacy of all the poten- 
tates of Europe, for the express purpose of extirpating free institu- 
tions (an event, the opportunity for doing which has now passed over), 
I imagine that the amount of both moral and physical power, which 
would be put forth by the nation, would exceed anything of the kind 
of which history gives an account. 

In the case of Great Britain and France; if the people possessed a 
higher degree of power, that is, if the national strength were intrin- 
sically greater, less outward display would be made of it; the 
resources of those states would not be wasted in the maintenance of 
vast military and naval establishments ; the productive labor of those 
communities would have taken a direction less fitted to captivate the 
imagination, but infinitely better calculated to promote their solid 
prosperity. When we speak of one nation as very powerful, in con- 
trast with some others, we ordinarily, but inconsistently enough, mean 
that the structure of society is such, as to enable a ruling caste to 
command the lives and fortunes of the major part of the population ; 
that is, we view what is in reality a capital defect in the institutions, 



CHAP. III. J 



OF FREE INSTITUTIONS. 



161 



as a symptom of strength ; we put a part in place of the whole, and 
because this disposition of the national strength is so imposing in ap- 
pearance, and bears with such an enormous weight upon the mass of the 
population, we conclude that the nation is more powerful. Doubtless, 
if we were to imagine the vast resources of the United States placed 
under the command of a military despot, and the minds of men to.be 
moved by an irresistible impulse, the national grandeur, as it is 
falsely termed, might be carried to the highest conceivable point. 
But the effective strength of the country would decline, and the moral 
energy which now animates the people would be speedily extinguished. 
As such a scheme of government would commence in injustice, it 
could only maintain itself by all sorts of injustice, and the laws would 
cease to be guided by the great rule of right, because the nation had 
become weaker instead of stronger. The formation of written consti- 
tutions, by the people themselves, is an incontestible proof that they 
believe there is such a rule ; that it is superior to the mere commands 
of men ; and that it has authority to govern in all public affairs, as well 
as in the private relations of society. Constitutions, which are origin- 
ally designed to be a restraint upon the government, operate neces- 
sarily in a popular commonwealth as a restraint upon the people also. 
An individual who voluntarily places himself in a situation which 
disables him from doing wrong, gives proof of his superiority. He 
only who is strong enough to be wise can afford to be just. And the 
same is true of a whole nation. 

There is this difference between a convention exercising the 
supreme power of the people, and an ordinary legislative body : the 
former enter upon the trust committed to them with a conviction that 
they are dealing with fundamental principles. The questions, what 
is right, what should be declared as rules, not temporarily, but for all 
time to come, are less embarrassed by the fleeting opinions of the day. 
And the ordinances which are framed have something of the absolute 
character of abstract truths. Hence no people would insert in their 
constitution any provision which was manifestly immoral or unjust, 
though the same could not be said of a legislative assembly. All the 
things which it may or may not do, cannot be written down in the 
constitution. And so a field of limited extent is still left open to 
exercise the judgment and discretion of the legislature. 

But may not this body transgress the bounds which have been 



162 



NATURE AND TENDENCY 



[book II. 



marked out by the constitution, and pass laws which, to use a term 
which is strictly an American one, are unconstitutional ? May it not 
do so, in compliance with the will of its constituents, the people ? 
And it is very certain that all this may be done. But in the United 
States the instances are exceedingly rare where it has actually been 
done. In almost every case, where an alleged violation has occurred, 
it has afforded subject matter for fair argument and debate on both 
sides, or the legislative act complained of was passed improvidently, 
and was subsequently repealed. The states of New Hampshire, New 
York, Maryland, Ohio, Kentucky, Illinois, &c, passed laws which 
were adjudged by the supreme court of the union to be unconstitu- 
tional, and those states immediately retraced their steps, although in 
one instance that tribunal went the length of decreeing that a pro- 
spective law impaired the obligation of contracts, and to the extreme 
length of declaring that, although such laws were not within the scope 
of state jurisdiction, it was competent to the federal legislature to 
pass them ; and yet I confess it is exceedingly difficult for me to con- 
ceive how it can be competent to any legislative body to violate a 
fundamental rule of morality. 

The admission of Texas might seem to be an exception to these 
remarks. It is certain that it was viewed by one party as an express 
violation of the federal constitution. But as that instrument does 
not contain an enumeration of the cases in which the treaty-making 
power may be exercised, the question is necessarily attended with 
great difficulties. Certainly it behooves a free people to guard against 
a too great extension, as well as a too narrow limitation, of the power. 
The authority by one government to accept an offer from another 
government, of a transfer of itself, so as to be incorporated with the 
former, appears at first blush to be too great an one to be confided to 
one department of the legislature. And as the most natural disposi- 
tion which can be made of this right, is to deposit it with the entire 
legislature, we are free to do so, when the constitution is absolutely 
silent upon the subject. It will hardly be supposed that the English 
people are unreasonably latitudinarian in their notions of legisla- 
tive power. The tendency is rather the reverse. The disposition is to 
guard scrupulously the prerogatives of the crown. The term treaty- 
making power has even a more indefinite meaning in that country 
than it has in the United States, and might seem, therefore, to 



CHAP. III.] 



OF FREE INSTITUTIONS. 



163 



swallow up every interest which concerned the foreign relations of the 
state, and which was not absolutely confided to the legislature. We 
might well suppose that the cession or exchange of European terri- 
tory lay fairly within the scope of the treaty-making power. And 
yet it is the opinion of the greatest English statesmen, that no such 
cession or exchange could be made, unless it were concurred in by 
both houses of parliament. 

There is no direct warrant for this interposition of the legislative 
authority. It can only be made out by admitting that the transfer 
of European territory, belonging to England, is theoretically within 
the treaty-making power; and yet insisting that it is not within its 
spirit. Nor does it alter the aspect of the American question, that 
because the treaty-making power in Great Britain is vested in the 
king alone, it is therefore necessary to guard against its exercise, in 
so novel a case, by subjecting his action to the control of the entire 
legislature. The question still turns upon, what is the theory of the 
British constitution, and where is the authority for limiting the treaty- 
making power in one particular case. Nor does it affect the argu- 
ment, that British statesmen hold, that such a compact must at least 
originate with the king. The difficulty still recurs, by what authority 
is the treaty-making power curtailed in a government where it seems 
to be least ambiguous, and least open to construction. The difficulty 
is similar to another which occurs under the American constitution. 
The treaty-making power is conferred without limitation on the pres- 
ident and senate. Would a treaty, by which the United States were 
bound to lay a duty upon certain articles of export, be valid. The 
clause which forbids such an impost is contained in the article which 
limits the legislative power. There is no limitation whatever in the 
article which confers the treaty-making power. The settled construc- 
' tion however, in America, is, that a duty upon exports would be un- 
authorized in any shape whatever; — in other words that, in order to 
give effect to the spirit of the constitution, we must transfer a limita- 
tion from one part to another part to which it has properly no relation 
whatever. And if this construction is unfounded, there can be no 
doubt, but what the construction put upon the treaty-making power, in 
the admission of Texas, is also unfounded. 

There is a very interesting problem, which the power of altering 
constitutions presents in America. When the deputies of the people 



164 



NATURE AND TENDENCY 



[book el 



have assembled for this purpose, and have not been bound by any 
specific instructions, is society resolved into its original elements? 
can the mass of society be treated as mere "tabula rosa"? so that 
the whole body of laws and institutions can be, not only prospectively, 
but retractively, annulled. If, for instance, numerous private associ- 
ations have grown up under the protection of the former laws, can 
they be swept away without regard to the deep and permanent injury 
which would be done to great multitudes of private persons ? This 
power has been contended for, in one state convention; but it was 
instantly rejected, although the population of that state was, at the 
time, perhaps the most democratic in the union; — a remarkable 
proof to what an extent the American people are impressed with the 
notion, that might does not give right, and how deeply all orders and 
parties, are convinced, that the great rules of morality and justice 
are not a gift by men, but a gift to men. It is admitted, that the 
authority of all public officers may be instantly abrogated by a con- 
stitutional convention; and the argument, that the analogy should be 
pursued through every species of private association, which the laws 
had created, would appear to have some color. Nevertheless, the 
distinction has been rigidly adhered to, and the contrary doctrine 
been proclaimed as both immoral, and antirepublican. If this were 
not the case, there would be nothing to prevent a convention from 
annulling all marriages ; and so introducing a host of mischiefs, which 
no time could cure. I do not pretend to say, that instances may not 
occur, of associations which are semipolitical and semicivil in their 
character, and which may be abolished by an " ex post facto" con- 
stitutional ordinance. But there must be a great and overruling 
necessity to authorize it to be done. The mischief intended to 
be remedied must be so glaring, as to shock the common sense of 
mankind. 

What I have been most intent upon showing is, that the American 
people have been scrupulously jealous of their own power ; that they 
have endeavored to guard against the idea that might gives right ; 
and have thus given to the term " sovereignty of the people" an in- 
terpretation which it has received in no other commonwealth, either 
of ancient or modern times. 



CHAP IV.] 



OF FREE INSTITUTIONS. 



165 



CHAPTER IV. 

POLITICAL TOLERATION IS IT PRACTICABLE? 

Religious toleration has produced tranquillity in the christian 
world ; and if toleration could also be introduced into the affairs of 
government, it could not fail to exercise a similar influence. But 
it does not very readily appear how this can be done. It is not 
necessary that religious sects should act ; at least it is not neces- 
sary that they should act beyond the sphere of their own societies. 
All that is necessary, in order to render religious toleration complete, 
is to permit all denominations to enjoy freedom of thought, and to 
make such regulations within themselves as are conformable to their 
own creed and discipline. But the case is very different in the world 
of politics. It is made up of political parties, and of one or other of 
these parties is the governing power of the community composed. 
In other words, the government must be wielded by the majority; and 
this majority is not only obliged to act, but to act beyond itself; to 
make rules for others, as well as for itself; to preside, in short, over 
the interests of the whole community. There is then a wide distinc- 
tion between religious and political parties, which seems to place 
insuperable difficulties in the way of introducing political toleration. 

If it is possible, however, to contract the sphere within which par- 
ties, even the party in the majority, are permitted to act; if, without 
questioning the authority of this last to go beyond itself, and to 
make rules for others, the occasions on which it exercised this right 
were diminished both in number and importance, it is not impossible 
that we might succeed in introducing into political affairs a spirit of 
toleration, which would exercise upon governments an influence very 
similar to that which religious toleration has exercised upon religious 
sects. 



166 



NATURE AND TENDENCY 



[book n. 



For that it is not at all necessary for a religious party so to act as 
to impress its authority upon others, is a maxim of very recent date, 
and is an effect of the very general progress which the human mind 
has made during the last hundred years. Keligion at one time was 
regarded as one of the chief, if not the chief, political concerns of the 
state. Religious parties did constantly act, and so effectually, as to 
affect the life, liberty, and property of the citizen. The system of 
intolerance seemed calculated to perpetuate itself : and so long as it 
lasted, the most enlightened understandings were borne down by the 
innumerable obstacles which stood in the way of religious toleration. 

It was easy to frame a plausible argument in defence of this state 
of things. It might be said that, from time immemorial, religious 
and political questions had been so mixed, that to attempt to separate 
them would be to do violence to both religious and political interests; 
would, at any rate, undermine the authority of government ; if for no 
other reason, simply because the minds of men had constantly run in 
that channel; that when there was a multitude of sects in the state, 
their religious tenets would exercise a powerful influence upon their 
political opinions; that this would lay the foundation for intestine 
dissensions, which would rend the whole community ; that the only 
cure was to give unity to religion, to establish it by law, and to ex- 
clude all dissenters from the privileges which were enjoyed by the 
favored sect ; that in this way the unity of the government would be 
preserved, and its authority rendered inviolable. The inference then 
would be a necessary one, that government could no more avoid acting 
in religious matters, than it could avoid the duty of defending the 
state against foreign invasion. Arguments, in some respects similar, 
might be now employed to show the impropriety of political toleration. 

The pope, at a very early day, became one of the most considerable 
potentates of Europe. Religious dogmas, of one kind or other, exer- 
cised complete dominion over the minds of men ; and other princes, in 
order to maintain tranquillity among their own subjects, and to 
preserve an equilibrium of power abroad, believed that it was neces- 
sary to add to their political, a very large share of ecclesiastical, 
authority also. Through all the ramifications of society, in public as 
well as in private life, religious and political opinions were so inter- 
woven, that it seemed impossible to separate' them. A war might be 
waged by the head of the church for the avowed purpose of imposing 



chap, iv.] OF FREE INSTITUTIONS. 167 



the most absurd and impious rites upon other nations, and if, as 
might naturally he expected, numerous adherents of these rites still 
lingered among those nations, their governments might persuade them- 
selves that it was necessary to suppress freedom of religious opinion 
at home, in order to deal a successful blow upon the enemy abroad. 
This was the first occasion of religion becoming an engine of govern- 
ment in the modern European states, and of the universal introduc- 
tion of religious intolerance. And as religion was thus erected into 
an affair of state, a further consequence took place, that ecclesiastics 
very generally became the statesmen of Europe. 

The destruction of the papal power — the gradual decline of all the 
Italian commonwealths, which for centuries composed the most civil- 
ized part of the European continent — the employment of men in civil 
life, in all public affairs — and above all, the general progress of know- 
ledge, industry, and freedom, have contributed to reverse the old order 
of things. A separation has actually been effected, between the polit- 
ical interests of the state and the religious doctrines which are taught. 

The tendency of modern society, then, is to withdraw religion from 
the arena of politics, to put all sects in the possession of privileges 
which were formerly usurped by one, so that it shall no longer be 
necessary, jior even possible, for government to extend its legislation 
over some, in order to promote the aggrandizement of others. The 
freedom of thought which has grown up every where, at the same time 
that it has disarmed the civil magistrate of a most dangerous author- 
ity, has created such a multitude of sects, that it would sometimes be 
impossible to bestow power upon one, without oppressing a very large 
majority of the population. It is not in consequence of any specula- 
tive notions, as to the justice and humanity of the principle of toler- 
ation, that it has gained ground so rapidly: the change has been 
brought about by a total alteration in the structure of society. The 
popular will, which reflects religious as well as political opinions, has 
gradually insinuated itself into the councils of all governments ; until 
it has itself become a power of formidable import. It has attained 
this influence, either directly by virtue of the principle of representa- 
tion, or indirectly through the instrumentality of public opinion. In 
the former case, the utmost freedom of opinion is obliged to be ac- 
corded to all religious sects. 

There are two ways of imitating this system in the region of politics. 



168 NATURE AND TENDENCY [book ii. 



One is, by extinguishing the cause of political disagreement ; the other, 
by rendering it the settled interest of all political parties to tolerate 
each other's opinions respectively. The first plan would seem to be 
impracticable ; but it is not so. Both plans are adopted in the United 
States, which being the only country where complete religious toleration 
has been established, it is natural, should also be the one in which the 
nearest approach has been made to the assertion of political toleration. 

A written constitution, framed by representatives of the people, 
locks up, and forever withdraws from the field of party strife, almost 
all those questions which have been the fruitful source of discord 
among other communities. For almost all the civil commotions which 
have occurred in the European states, have been caused by a disa- 
greement about questions which are no longer open to debate in 
America. The constitution, with the approbation of men of all par- 
ties, has placed them beyond the reach of the government. The au- 
thority appertaining to the political departments is also strictly 
limited; and thus, a large class of powers which other governments 
have been in the habit of dealing with, without any control, cannot 
be exercised at all. In the same way as religion is withdrawn from 
the political world, and has given rise to religious toleration, the fun- 
damentals of government are also withdrawn from all interference 
with by party; and all men agree to think and to act alike with 
regard to them. 

As to those subjects which are left open to controversy, a great 
approach has been made, though in another way, toward the estab- 
lishment of political toleration. In the first place, every one is free 
to think and to speak as he pleases ; and in the second place, the 
minority, so far from being excluded from the government, are entitled 
to a representation in exact proportion to their numbers. This is of 
the greatest importance ; because this body are thus placed in a situ- 
ation where they may not only think and speak for all purposes, but 
where the exercise of so enviable a privilege may ultimately enable 
them to act for all purposes. It is very easy to construct a legisla- 
tive body, so as to represent only one interest in the state. It may 
be hereditary, or for life ; in which case, it would wield an undivided 
influence, and there would be no effective and practical toleration for 
other classes ; or the electoral franchise may depend upon so high a 
qualification, as to produce an effect similar in its operation. Very 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



169 



different, however, is the case in the United States. The legislative 
assemblies are composed of men of all parties ; and although in poli- 
tics, the governing authority cannot deliver itself from the necessity 
of acting, yet so much freedom is enjoyed by the members who com- 
pose those assemblies, that political questions borrow light from all 
parties. I believe if we were to take any considerable series of years, 
it would be found that the leading measures which have been adopted 
in the United States have been the fruit of the joint exertions of all 
parties ; that they have been ultimately so arranged as to reflect in 
part the opinions of the majority, and in part those of the minority. 
And thus, the spectacle is no longer presented, of one fixed and im- 
movable interest engrossing the whole power of the state. 

The introduction of the principle of political equality, is another 
step toward the establishment of the most complete toleration. Men 
are obliged to recognize the liberty of others, in order to maintain 
their own. The same revolution is effected in politics, as was formerly 
brought about in religion. The multiplication of sects was so great 
as to deprive any one of them of a predominant influence, and so 
excused government from investing it with exclusive privileges. This 
first suggested the notion, that toleration was not only just, but that 
it was eminently expedient. The great diversity of opinions, so far 
from being an obstacle in the way of religious toleration, was the 
means of establishing it. But the same causes which have multiplied 
religious have also multiplied political opinions, so that there is no 
possible way by which one party can be free without permitting all 
to be free. 

The confederate form of the American government adds additional 
force to the principle of political toleration. The country is divided 
into a number of separate, and to most purposes independent, govern- 
ments. And it is a consequence of this arrangement, that all political 
opinions are not subjected to the control of a central legislature. 
The affairs of government are divided into two classes : one of which, 
comprehends the federal interests, the other the domestic interests of 
the states. And this second class may again be divided into as many 
subordinate ones, as there are states composing the confederacy. If 
this system were not adopted, the local interests would be subjected 
to the jurisdiction of a single legislature, which could not adapt itself 
to the diversified wants of so extensive a country, and so the laws 



170 



NATURE AND TENDENCY 



[book II. 



might follow one undistinguishing rule for communities whose pur- 
suits were ever so different. But now, the governing party in the 
national councils may, or may not, be at any one time the governing 
party in a majority of the states. The effect, in other words, is not 
merely to permit the people of each section of the country to exercise 
freedom of thought and speech, but to carry their opinions into prac- 
tice — to frame their laws in conformity with their own wishes, instead 
of being governed by the general majority of the whole country. As 
all religious sects are tolerated, and placed in the possession of equal 
rights, because religion is divorced from government, so all local par- 
ties, however numerous, are tolerated, and have an equal share of 
power, because the administration of the state governments is wholly 
disconnected with that of the confederacy. 

Political toleration, then, is not a solecism in politics : it is actually 
incorporated into American institutions, though, like all other great 
blessings, they who possess it are least sensible of its existence. 

Political toleration is carried to a much greater extent in the 
United States, than is religious toleration in many of the most enlight- 
ened European governments. For let us consider what the term reli- 
gious toleration imports, even in England. It does not mean that all 
sects are placed upon an equal footing. All sects are permitted to 
enjoy their religious opinions, and to adopt what forms of worship 
they please ; but only on condition that they pay the tithe which is 
collected for the support of the established clergy. That is to say, 
all dissenters from the state religion are punished for the exercise of 
the rights of conscience. It is not necessary to recur to the fact, 
that certain oaths are still imposed upon all dissenting ministers, and 
that one class of dissenters is forbidden to hold some of the highest 
offices in the state. The assessment upon all denominations equally, 
for the support of an established hierarchy, makes a wide and impor- 
tant distinction between religious toleration in England and political 
toleration in the United States. And although all political parties in 
the latter are taxed for the support of government, as it is adminis- 
tered by the majority, yet there is, after all, a wonderful coincidence 
in the line of policy which is advocated by both parties. The points 
of agreement are a hundred-fold greater than those in which they 
differ. The latter acquire importance from standing out as exceptions 
to the general rule. They only contribute to keep up some animation 



2 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



171 



in society, where otherwise all would be dull and monotonous. Be- 
sides, there is no party established by law. The laws which are 
passed by the majority are the supreme rule, but the majority to-day 
may be the minority to-morrow. But in England, a powerful religious 
party is established by law, nor is there any way of moderating its 
influence through the occasional ascendancy of other opinions. Its 
privileges are exclusive and permanent, and depend in no manner upon 
the exercise of the popular will. The injustice which is thus done, 
to a very large and enlightened portion of the English people, is plain 
enough. But it is still more glaring in the case of Ireland, where 
dissenters from the established church are an immense majority of 
the whole population. 



172 



NATURE AND TENDENCY 



[book II. 



CHAPTER V. 



MONARCHICAL GOVERNMENT. 



What is the foundation of that illusion which has caused such 
multitudes of people in all ages to yield a willing and implicit obe- 
dience to the rule of a prince ? A weak man, or woman, nay a child, 
once seated upon the throne, exercises a dominion over the imagina- 
tions of men which the longest time, the greatest reflection and expe- 
rience, seem unable to conquer. This vast and disproportioned 
influence, of one individual above millions, seems an anomaly in the 
history of human nature. It cannot be ascribed to a persuasion 
among the community of the eminent advantages which spring from 
such a disposition of the political power. A considerable fraction of 
the community may have this persuasion in great strength ; but to 
suppose that the community as a body reasoned in this way, that they 
proceeded upon any settled and deliberate view of the utility of the 
plan, would argue the existence of so high a degree of reflection as 
to give rise instantaneously to representative government. That 
fraction of the community who are so persuaded, are only so in con- 
sequence of their observing the operation of some other very different 
principles which rule over the mass of mankind. They notice the 
superstitious feeling which ignorance engenders ; they then notice the 
idolatrous attachment of superstition to every species of authority, 
and still more to the gorgeous ensigns of authority. One may observe 
the workings of a similar principle in the government of private 
families. Children very generally believe their parents to be superior 
to other men and women. It is not until they become adults (and 
very often not then) that they are disabused of this prejudice. Some 
observation and experience are necessary to this end. But it is 



chap, v.] OF FREE INSTITUTIONS. 173 

obvious how much this feeling contributes to the establishment of 
parental authority: it is equally obvious how much a similar and 
equally mysterious principle contributes to the government of 
mankind. 

The peasant who ascends a lofty mountain is instantly struck, no 
matter how untutored he may be, with the grandeur and sublimity 
of the scene before him. A vague notion of infinity is irresistibly 
thrust upon his mind, although he knows that the vast surface be- 
neath him is composed of alternate patches of wood and cleared land, 
exactly like those in his own neighborhood. So when he confusedly 
calls to his recollection the vast population in which he lives, called a 
state, or community, he dwindles into insignificance in the comparison, 
although that vast body is only made up of men and women, like 
those in his neighborhood. In the first instance, a being beyond the 
world is suggested; in the second a being himself, and yet not out of 
society. In both instances, the notion of unity seems necessary, in 
order to give support to his vague notion of immensity, and to make 
tolerably comprehensible what would otherwise be beyond the reach 
of his faculties. The conviction of the existence of a governor of the 
universe very naturally takes possession of him ; the notion of roy- 
alty, as the impersonation of the state, is thrust upon him with nearly 
equal force. 

In a republic men all descend into the plain ; they are no longer 
overpowered by the indistinct notion of immensity. The understand- 
ing gains the ascendency, and they are enabled to form more just 
notions on all subjects. Their religion, which was at first the crea- 
ture of impulse, and therefore easily fabricated into some form of 
superstition, becomes both more rational and more devout. In like 
manner they are better able to survey calmly, and one by one, the 
men and things which make up the great community in which they 
live. The feeling does not leave them entirely ; but it now becomes 
subservient to very important ends, and is made to promote their own 
interests as men and citizens. Each individual has the sense of per- 
sonal independence, not merely as applied to himself, but as applied 
to all other individuals, more and more impressed upon him, because 
the point from which he now views every thing is more favorable to 
cool analysis, and to setting every thing in its proper light. But the 
reverberation of an authority from without still reaches him. He 



174 



NATURE AND TENDENCY 



[BOOK II. 



hears of millions of other people who are associated with him under 
the same government. Of these millions perhaps he never saw a 
thousand, perhaps not even an hundred. The existence of those 
beings, on that very account, makes a profounder impression upon his 
mind. On an analysis, perhaps it will be found that it is the notion 
of immensity which is gained by the view (the more indistinct the 
more imposing) of a vast population, which serves to cherish and to 
uphold the notion of royalty. The king is regarded as the special 
representative of that vast population. He becomes the state itself; 
so that if we can give to the terms "state," "people," sufficient 
unity, republican rule will exercise as potent an influence over the 
imaginations of man, as monarchical rule. 

Doubtless, it would be as impossible to create the rule of an hered- 
itary monarch in the United States, as it would be to carry physical 
science back to the condition in which it was before the time of Bacon ; 
and for precisely the same reason. For want of a rational system of 
experiment and observation, phenomena the most simple, and the 
most easily explained now, were subjected to the most crude and fan- 
ciful speculations. Superstition reigned over physical, as it still does 
in many parts of the world, over political, science. Actual experiment 
and observation have dissolved the superstition in the first instance ; 
and it is possible that the sturdy good sense of the nineteenth cen- 
tury will go a great way toward undermining it in the last. The doc- 
trine of occult causes was precisely akin to the political illusion of 
which I have spoken. 

Where the people are immersed in ignorance, they feel themselves 
incapacitated to take any part, even the most indirect, in public af- 
fairs. This feeling cannot be shaken off ; for knowledge is power, in 
every department of human life; and wherever there is great igno- 
rance, the desire and the power to will effectually are both wanting. 
This state of things, for the time being at least, withdraws all politi- 
cal power from the masses, and reposes it in the hands of those who, 
either by rank or education, are lifted to a higher condition. Power 
is thus transferred easily, and without noise or violence, to a very 
small portion of society. But whenever a set of institutions come to 
represent the opinions and feelings peculiar to a class, those opinions 
and feelings will not be understood by those who are out of the class. 
The modes of thinking and acting among the former will begin to 



chap, v.] OF FREE INSTITUTIONS. * 175 

wear an air of mystery which time will only increase, until at length 
the whole machinery of what are termed great affairs will be abso- 
lutely unfathomable by the multitude. 

. The great men will then begin to quarrel among themselves for the 
mastery. The most warlike, or the most crafty, will obtain it. In 
the event of a vacancy to the succession, he will possess himself of the 
crown. A new revolution will then take place. Before, the high places 
in the government, and the lustre which surrounded them, overpowered 
the imaginations of the people. They paid a sort of instinctive obedi- 
ence to the prince ; which is the same as to say, that a great power 
had risen up in support of the throne. Now, also, it is not against 
the assaults of the people that he stands in need of protection, for 
they are already overawed ; it is against the assaults of the other 
great men. But the same sentiment of obedience, so undefined, and 
yet so enthusiastic, constitutes an impregnable barrier against those 
assaults also. The great men in the state soon discover, that although 
out of their own limited circle, nothing is understood concerning state 
affairs ; yet, that this very ignorance has given birth to a power which 
none but themselves have to fear. As soon as one of their number is 
made chief — as soon as he is fairly seated on the throne, the rev- 
erence of the multitude is directed toward him, and withdrawn from 
all others. The spell even begins to take possession of their own 
ranks. A sentiment of superstition in one part of society is converted 
into an universal conviction of right. The throne is fortified from 
within and without; it is equally guarded against the violence of the 
multitude, and the conspiracies of the nobles. 

In the progress of time, it may be a very long period, the number 
of those who are placed in independent circumstances will be greatly 
augmented. Rich landed proprietors, great merchants, and opulent 
manufacturers spring up ; and this will give birth to a new class, 
formed out of intermarriages between the families of the nobility, and 
those of rich commoners, and which is denominated the gentry. 
Still later, education is extensively diffused; the press, although it 
should be under some restraint, spreads intelligence ; a higher and 
wider civilization takes place. A popular branch is added to the 
legislature ; or if one already exists, greater influence and authority 
are conferred upon it. A remarkable crisis now occurs. The lustre 
which surrounds the throne seems to be more dazzling than before. 



176 



NATURE AND TENDENCY 



[book II. 



Notwithstanding the spread of intelligence, and the general elevation 
of the popular mind, its power appears to be firmer and more durable 
than ever. The class of the rich and influential have been swelled to 
a great magnitude ; and this class, for the most part, lends its support 
to the throne rather than to the people. 

Patronage, which supersedes the rough and irregular exercise of 
power, gives the monarch great influence among this class. Offices 
are multiplied in proportion as civilization advances. And in addition 
to all this, great numbers of people among the middle class, fearing 
more from the turbulence and licentiousness of popular freedom than 
from the exercise of the royal prerogatives in a limited monarchy, 
array themselves on the side of old institutions. A great party is 
for the first time formed, composed of persons whose opinions are 
founded upon the most mature and deliberate reflection. They would 
have more freedom imparted to the institutions of government, if they 
could only see their way clearly through the process which leads to it. 
They do not believe it can be done without endangering the whole 
system. Russia, and Austria, may be considered as illustrations of 
the first period; France, and Great Britain, of the second. Prussia 
must be regarded as trembling between the two. 

The second period may be of indefinite duration. The country is 
then filled with wealth and intelligence ; civil liberty seems to be 
secured to all conditions of men; a great middle class has been created, 
holding the balance of power in the state, and yet constantly inclined, 
whether from temperament, habits of reflection, or views of ambition, 
to throw the weight of its influence in favor of the superior classes. 
But, inasmuch as reflection has been roused, and a disposition to 
think and ponder upon the men and institutions which surround them 
has been developed in a great multitude of minds, it is plain that the 
artificial and unnatural principle, on which government originally 
hinged, are beginning to be probed and comprehended, and that the 
great mysteries of government, in order to be unveiled, only wait for 
an opportunity favorable to calm and deliberate action. And when 
this is the case, seeing that all knowledge is progressive, and even 
contagious, it will be difficult to predict with any thing like certainty 
how long the institutions will be permitted to stand still, or how soon 
the hand of a thorough, and yet judicious and temperate, reform may 
fall upon them. 



CHAP. V.] 



OF FREE INSTITUTIONS. 



177 



When this interesting period has arrived, great numbers of men 
will unite, in order to obtain important changes in the government ; 
associations will be formed with this avowed design, the majority of 
whose members will perhaps be composed of citizens who are politi- 
cally disfranchised, and yet consisting of so large a portion of those 
who are not, as to give great weight and authority to the opinions 
of the whole body. A majority of that part of the middle class 
who do possess political privileges will be roused, and will recoil 
at every attempt of this new party, until at length the spirit of 
reflection, which has silently prepared the way to every species of 
salutary improvement, has effected a reconciliation between parties, 
when much will be conceded, and yet some substantial advantages 
will be obtained by the great movement party. This revolution will 
be repeated at successive intervals, until at length the entire body, of 
what may be justly termed the middle class, are admitted to the elec- 
toral franchise, and rendered eligible to office, when all further change 
will cease, not merely because none other will be wise, but because 
the moral force of society will be arrayed in defense of what has been 
gained, and in opposition to any further change. Before this revolu- 
tion is accomplished, the notion, that the middle class comprehends 
none but persons who have an interest in landed estate, will naturally 
be discarded. The citizens who possess personal property will be 
placed upon an equally favorable footing; nay, the rule will perhaps 
be made still wider, and every one of good character, and who con- 
tributes to the support of government, will be admitted to the electoral 
franchise. For, so long as any one of those who go to make up the 
effective strength of the state are excluded, government not only 
commits great injustice to a numerous class of the people, but it 
deprives itself of a powerful support to the laws. 

There is a fourth period which may occur; one deeply interesting 
to the cause of humanity, and to the final success of free institutions. 
The acquisition of so many blessings, the enjoyment of such delightful 
tranquillity, both in public and private life, may lead to too much 
repose and inactivity. Sloth and voluptuousness may overspread the 
land, and the institutions may fall in the midst of the greatest pros- 
perity. It is true society will be more completely protected against 
this disaster, than at any preceding period. As the distribution of 
wealth will be more equal, the moral force of society will be better 



178 



NATURE AND TENDENCY 



[book II. 



balanced, the means of recruiting the superior ranks from the classes 
below them will be more abundant than ever. Still all this may not 
be sufficient. It may be necessary for society to go backward, in 
order again to spring forward. For the dissolution of an old and 
worn out society has sometimes the effect of breathing a new spirit 
into the whole population. All classes and conditions are then con- 
founded together. The rich and the powerful are tumbled from their 
enviable position; they are brought down to the level of the obscure 
and humble, who now begin to run a new race for all the advantages 
of fortune. This is a provision inherent in the constitution of every 
community which has become effete with luxury and corruption. 
There may be no way of revivifying the elements of society, and of 
imparting fresh vigor to the population, but by passing them through 
the ordeal of a terrible adversity. But the experiment will be quite 
new, when any nation shall have traveled to the utmost limit of the 
third period. As the institutions will then have a sort of self- 
preserving faculty, and will contain powerful antidotes to the evils 
just indicated, we do not know whether any further revolution will be 
necessary. The high probability is that it will not ; and this is the 
last term — the final consummation of our hopes. 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



179 



CHAPTER VI. 

NOTICE OF THE ENGLISH CONSTITUTION. 

One of the most remarkable properties of the English government, 
is the faculty which it possesses of accommodating itself to altera- 
tions in the structure of society. The theory of the constitution is 
pretty much the same as it was in the reigns of the Tudors ; but its 
practical working is totally different. The social organization has 
undergone a great change during the last seventy years, and this has 
made a deep and lasting impression upon the political institutions. 
The king, the nobility, and the ecclesiastical hierarchy, occupy the 
same relative position to each other ; but they do not occupy the 
same position toward the people. This power of adapting itself to 
the altered condition of society, is one of the most valuable qualities 
which a government can possess. It is next in importance to positive 
changes in the composition of the government. 

The revolution I have spoken of has been silent, but progressive. 
It has effected an entire change in the modes of thinking of all 
public men, and has wrought a corresponding change in the system 
by which public affairs are conducted. The prerogatives of the king 
and aristocracy are the same as formerly, but the people have been 
steadily advancing in strength and importance ; and how is it possi- 
ble to employ power against the powerful? As the general improve- 
ment of the population, and the consequent amelioration of the 
manners, has imparted a new character to the temper and dispositions 
of individuals ; so the inability under which public men find themselves, 
of exerting even an acknowledged authority, renders that authority in 
great part merely nominal; and the administration of the govern- 
ment in practice no longer agrees with what the theory imports. 



180 NATURE AND TENDENCY [book ii. 



There are only two ways of effecting alterations in the political 
institutions. The one, is by sudden leaps; the other, by slow and 
insensible advances. The first is sometimes attended with so much 
violence and confusion, as to endanger the existence of the entire 
fabric. The second, although it avoids this evil, has, nevertheless, a 
tendency to postpone the most wise and salutary changes, to a period 
far beyond that when society is ripe for their introduction. 

Montesquieu said, of the British government, that it was a repub- 
lic in disguise ; which shows what inadequate notions this eminent 
writer had formed of a republic. But it is not at all improbable, 
that it will become at some future day, not perhaps very distant, a 
republic in reality, and not one merely in disguise. When I perceive 
the great bulk of the people growing to the full stature of men ; and 
when I observe that, in every contest between liberty and power, 
the advantages gained have been constantly on the side of the 
people, and never on that of the government ; I see causes in opera- 
tion which are not only sufficient to bring about this result, but 
which seem to lead straight forward to its accomplishment. 

But how is it possible, without sudden leaps, to get beyond the 
point which has already been reached. How in other words, without 
creating an universal revolution, can the structure of the government 
be changed fundamentally. It is through the instrumentality of that 
invisible but powerful agent, which we term public opinion, that a 
spirit has been breathed into the institutions. But public opinion 
does not construct, it only influences and modifies. It may, step by 
step, and without noise and confusion, affect the working of the 
machine; but this is very different from taking the machine to 
pieces : very different from abolishing the royal power and the house 
of lords, and substituting in their place an elective chief magistrate 
and senate. 

This is an obstacle, and a fordimable one, in every attempt to 
alter the composition of an ancient government. Society, in Great 
Britain, is ripe for the introduction of free institutions, if there were 
no other system already in existence. The existence of that other 
system, with the vast patronage and influence appended to it, has a 
powerful tendency to counteract the form of public opinion, and 
renders it a work of infinite delicacy to make any radical alteration 
whatever. 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



181 



But the process I have described may continue so long as to give 
rise to further changes of the same character; and, by molding the 
minds of men after a different fashion of thinking, may have power 
sufficient to overbear the influence of the throne and aristocracy. In 
this way, what would have been an abrupt and violent leap at an 
early period of society, may become an easy transition at a more 
advanced stage. Every thing depends upon the shock which the 
mind receives. We do violence to the political institutions, only 
when we do violence to inveterate habits of thinking. But if old 
associations are broken in upon, there is no room for committing vio- 
lence in any quarter. I think it cannot be doubted, that the footing 
on which the electoral franchise, parliamentary representation, reli- 
gious toleration, and the freedom of the press, now stand in Great 
Britain, would, in the reign of Elizabeth, have been regarded as a 
much greater movement, than would at the present day the entire 
reconstruction of the executive magistracy, and the house of lords. 
Although the second appears to involve a more direct and positive 
interference with established institutions, it does not run counter to 
the genius and tendency of the age : it would therefore give much 
less shock to the understandings of men. 

It is a remark of Mr. Hume, that there was, in his day, a constant 
tendency toward a diminution of the personal authority of the king. 
This fact has been still more observable since Mr. Hume wrote. And 
the reason why it is so is very obvious. The amount of real busi- 
ness which falls under the management of the executive, becomes so 
vast and multifarious with the advance of society, that no one man, 
much less a king, can attend to the one-hundredth part of it. The 
consequence is, that the whole of this business has been gradually 
transferred to an executive board. So long as it was possible to 
conceal the cause of this change from general observation, the king 
continued to retain the dazzling influence which the vulgar appre- 
hension ascribes to him. But now that this cause is apparent to 
every one, the royal and the executive authority have ceased to be 
even nominally the same. For not only is the king totally unable to 
discharge this huge mass of business ; but ministers do not even hold 
their places at his will. The direction of public affairs was formerly 
a very simple concern. The gratification of the king's pleasures and 



182 



NATURE AND TENDENCY 



[book ir. 



ambition comprehended the whole. And although some share of 
business talent could not well be dispensed with, yet as public tran- 
sactions consisted for the most part of war, negotiation, and intrigue ; 
the imaginations of the people very naturally figured the king as 
incomparably the most prominent actor upon the stage. But the 
case is very different now. Intellectual ability, extensive informa- 
tion, indefatigable industry, are all absolutely necessary to any toler- 
able success in the management of public affairs. The English 
statesman now a days has to deal chiefly with the interior interests of 
a densely peopled and highly civilized community. War, which for- 
merly employed the whole attention of the state, is becoming a mere 
episode in its history. It is impossible for any monarch, however 
ignorant or bigoted he may be, to misunderstand the import and 
bearing of this great revolution in human affairs. With regard to 
the lords, I have in another chapter alluded to the process which seems 
destined to bring about the decay of their power and influence. 
Wealth constitutes the soul of an aristocracy. Other qualities may 
add lustre to the institution; but it is wealth, exclusive wealth, which 
gives it a firm hold, and a commanding authority, in society. But 
riches are now obtained by such a multitude of individuals, that they 
can no longer be the foundation of a privilege. What was once the 
chief element of an aristocracy, is now a great element of popular 
power. The same causes which conspired to create an hereditary 
order, are now at work to enfeeble it. The English nobility are no 
longer the haughty and powerful barons who formerly lorded it over 
the commons. They are simply among the most polished and afflu- 
ent gentlemen of the kingdom : guarded for the present by a sort of 
conventional respect, but no longer wielding a formidable authority 
over the rest of the population. 

The French have very recently made a fundamental alteration in 
the institution. The peerage is no longer hereditary. An event 
which seventy years ago would have startled the public mind through- 
out Europe, has been brought about with as much facility, and has 
created as little sensation, as an act of ordinary legislation. It is 
true, the English nobility are a much wealthier body than the French. 
But the English commons are wealthier than the French " tiers £tat," 
in a still greater proportion. The materials for constructing an 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



183 



aristocracy are more near at hand in England than in France ; but 
the uses of the institution would seem to be more apparent in the 
latter than in the former country. 

An aristocracy is of two kinds. It may be so numerous, and en- 
gross so large a share of the landed property of the country, as to 
form a component and very substantial part of the whole population. 
This was at one period the case in almost every European state. It 
has ceased to be so every where except in Russia and Poland ; or it 
may consist of so small a number, that the only way to compensate 
for its want of strength, and to preserve it as a distinct order in the 
state, will be to make the entire members a constituent part of one 
branch of the legislature. This is the case in Great Britain, except 
so far as regards Scotch and Irish peers, a certain number of whom 
are elected by their own order to seats in the house of lords. Scotch 
and Irish peers are not so numerous as to prevent their sitting in one 
chamber, along with the English peers; but political considerations, 
growing out of the union of the three countries, have given rise to the 
present arrangement. 

But where a nobility compose so very small a part of the popula- 
tion, and yet are endowed with such extensive political authority, the 
incongruity between the natural influence which belongs to them, as 
well-educated gentlemen, and the artificial privileges heaped upon 
them, must strike every one of the least reflection, no matter how 
familiarized he may have become with such a state of society. To 
remodel the institution, therefore, or to dispense with it altogether, 
would do no violence, would cause no disturbance to the public tran- 
quillity. As the change would be strictly in accordance with the ideas 
of the age, and would but second a movement which is in full pro- 
gress, so it would affect but a mere handful of men. And there are 
probably no persons in the British empire more observant of the 
course of events, more thoroughly convinced, that the day is approach- 
ing when it will be impossible to oppose their authority, even nomi- 
nally, as a counterpoise to the commons, than the nobility themselves. 

While the active political authority of the king and nobility has been 
gradually decreasing, that of the commons has been as constantly 
advancing. The same cause, the dispersion of knowledge and pro- 
perty, has produced these opposite effects. But as the people rise in 
the scale of intelligence (even though we confine the meaning of people, 



184 



NATURE AND TENDENCY 



[book el 



to that powerful body called the middle class), in proportion as 
they participate, although indirectly, in the affairs of government, they 
are brought to a clearer understanding of every thing which apper- 
tains to the machinery of government ; and have a closer insight into 
the character and motives of all public men. Things which were 
before regarded as mysterious in the highest degree, and which were 
never approached without a feeling of awe, are now handled and 
touched, and become thoroughly familiar to common apprehension. 
Wealth originally gave privileges to a few hundreds ; but it has now 
given intelligence to the million, and this enables the commoner to 
stand upon something like an equal footing with the noblemen. 3Ien 
are never able to take exact guage of each other's dimensions, until 
they are made to stand side by side of one another ; when those quali- 
ties, which were before so much magnified by the mist through which 
they were seen, assume their clue proportions ; and the individual man 
is valued more for what he possesses, and less for what he can make 
display of. The characters of public men appear grand and colossal 
only in consequence of the illuminated ground on which they are 
exhibited. 

There is one branch of the British legislature in which very great 
aHerations may be made, conformable with the genius of the age, 
without immediately affecting the absolute theory of the government ; 
although these alterations may ultimately disturb the whole balance 
of the constitution, and lead by an easy transition to fundamental 
changes in the structure of the government. The house of commons 
is elected by the people, but to what extent it shall be the genuine 
representative of the popular will, depends upon the high or low 
qualifications of the members, and the restrictions imposed upon the 
electoral franchise. If the qualifications in both instances were 
lowered, the power of the people would rise in proportion. Now 
there is an evident tendency in that direction at the present day. 
The reform bill, which is one of the most memorable acts of the 
British parliament, has gone a great way toward altering the relative 
influence of different parts of the government. But the achievement 
of one reformation renders the necessity of others more easily discer- 
nible, and very frequently paves the way for a change of the greatest 
magnitude, which had not before been dreamed of. The basis of 
representation, in all human probability, will continue to be enlarged, 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



185 



until the house of commons has acquired such a preponderant weight, 
as to make every one see the extreme incongruity of a legislative body, 
which fairly represents all the substantial interests of the state, 
standing in intimate connection with two institutions which have no 
immediate dependence upon the public will. It is true the concur- 
rence of the house of commons will be necessary to any further 
reform of parliamentary representation. Indeed the laws, which are 
designed to effect that object, must be supposed to originate in the 
popular branch. And it may be said, that it will be the evident 
interest of the members to oppose every plan by which the field of 
competition for their own seats shall be widened, or by which the 
numbers of their constituents shall be so multiplied as to render them 
less easily manageable, by either intrigue or bribery. These conside- 
rations did not prevent the passage of the act of 1832. Public 
opinion, when it has acquired a certain amount of strength, acts upon 
the mind with as much force, and as absolute certainty, as the most 
powerful motives of self interest. The temper and dispositions of men 
become inflamed, as well as their understandings enlightened. The 
new fashion of thinking becomes contagious, and takes possession of 
society, without any one being aware whither it is carrying him. 
Indeed the causes which lead to any great changes in the structure of 
society, are never under the immediate control of men. They deter- 
mine the will, instead of the will determining them. 

It is through the operation of a great many causes the diffusion of 
knowledge and property, the growth of public opinion, the creation of a 
great middle class in society, and the giving to the representatives of 
the people a distinct voice and commanding influence in the legislature, 
that the public mind may be irresistibly conducted to a change in the 
fundamental laws, by which the officers of every department of the 
government will be rendered strictly responsible. There is no good 
reason why the chief magistrate and the senate should continue to be 
hereditary, when the popular body has become so numerous and so 
powerful, as to swallow up the distinction of classes. The creation of 
a king and nobility may be said to have been originally owing to the 
inordinate influence which the imagination exercises over the minds of 
men, at an early stage of society. But reflection, the most striking 



186 



NATURE AND TENDENCY 



[book el 



characteristic of the present age, is a wonderful extinguisher of the 
imagination, in all affairs of real life. 

It must be admitted that the principle of virtual representation, 
which is incorporated into British institutions, has been more success- 
ful than in any other government which has existed. But even if it 
were possible to perpetuate the system, it has many intrinsic defects. 
The great advantage of actual representation consists in its fixing 
the attention of all classes upon the conduct of public men. It thus 
initiates the people into an acquaintance with the practical working 
of the system, and founds their attachment to government upon their 
interests. Virtual representation is without these advantages. How- 
ever powerful public opinion may be, and although it may prevent 
acts of injustice in the gross, yet it cannot reach them in detail. The 
system of public measures, and the conduct of public men, are made 
up of an infinite number of acts, each of which may be inconsiderable, 
and yet the aggregate of incalculable importance. When the rulers 
of the state are not subjected to a strict accountability, they become 
a law to themselves ; they create a standard of opinion within their 
own circle, which necessarily weakens the force of that general opinion, 
whose office it is to watch over the actions of all the functionaries of 
of government. It is true there is a species of adventitious authority 
attached to all human institutions which, after all, must come in for a 
very large share in the government of mankind. But the American 
experiment has demonstrated that free institutions possess this quality, 
to as great extent as either monarchy or aristocracy. The popular 
mind clothes all the symbols and insignia of a legitimate authority, 
with the same sort of veneration and respect which contribute to 
uphold the artificial forms of government. 

There is one circumstance which might be supposed to stand in the 
way of all interference with the fundamental laws, and to prevent any 
alteration in the existing theory of the government. The middle 
class are, in effect, the governing class in Great Britain. By them, 
every thing must be done. And it may be insisted that, when this 
class reflect upon the perfect security which they now enjoy, they will 
be unwilling to exchange it for an untried state of being; that they 
will be more strongly impressed with the advantage which a system 
of institutions, in part artificial, has in producing domestic quiet, and 
inspiring an instinctive obedience to the laws. They may fear that 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



187 



all the industrious occupations, which now confer comfort and inde- 
pendence upon them, may be interfered with, if they give countenance 
to any further changes, no matter how just, and how beneficial in 
many respects, those changes may be. In short they may be con- 
vinced, that if royalty and aristocracy are evils, they are at any rate 
necessary evils in the government of an ancient society. There is, 
no doubt, force in these considerations: but they presuppose, and 
rightly too, a high degree of reflection among that class ; and it is this 
reflection which, on the one hand, constitutes a guarantee against the 
mischiefs which are apprehended ; and on the other, is a sure presage 
of very material changes in the structure of the government. These 
changes will only be postponed to a period when they will cease to be 
regarded as a revolutionary movement, and will appear to be a natural 
transition of the institutions into a position already prepared for them. 
They will be preceded by a very important measure : one which will 
place all the members of the middle class upon the same footing, and 
give them all an equal voice in the government. For, although I have 
represented the middle class as holding the balance of power, yet it 
is not the entire body, but only a part, which possesses this influence. 
Not all the middle class are comprehended in the list of voters. The 
qualifications of electors might descend much lower, and take in a 
very numerous and substantial part of the population which is now 
left out. Moreover, the possession of personal, as well as real and 
leasehold property, might be made a qualification. When these two 
measures, so natural and so easy of adoption, are actually accom- 
plished, the danger to society will no longer seem to consist in taking 
down a part of the government, in order to reconstruct it; but rather 
in permitting it to stand as it is, not representing the popular will, 
and yet, the popular will, possessing all power and authority. 

As I have already remarked, there is no class of men who have a 
more distinct appreciation of the very general progress which know- 
ledge, industry, and morals have made among the English people, than 
the nobility themselves ; none which is more thoroughly sensible of the 
goal whither things are tending. 

There is, then, a very general conviction that the present state of 
things cannot last forever — that royalty and aristocracy cannot stand 
secure amid the light of the nineteenth century. When this is the 
case, the revolution is half accomplished. The middle class at a 



188 



NATURE AND TENDENCY 



[book II. 



future day need not say to tae king and his ministers, you may 
squander the wealth of the state, provided you will protect us against 
the assaults of the lower classes. For they will he able to protect 
themselves as effectively, and with infinitely less expense ; while at 
the same time, innumerable abuses and deformities in the system, 
which have no other use than to prop up an exceedingly artificial form 
of government, will be extirpated. 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



189 



CHAPTER VII. 

THE LEGISLATIVE POWER. 

The great defect of what is termed pure democracy, as distinguished 
from representative government, consists in this, that the former is 
without an established system of laws. The momentary and fluctua- 
ting will of the people constitutes the law on every occasion; — which 
is the reason why that form of government is the worst except despo- 
tism. Nor does there at first sight seem to he any reason why there 
should be any pre-established ordinances to bind the people, when 
they assist personally at every public deliberation. Their will consti- 
tutes the law, because there is no superior human power behind them 
to draw them back when error is about to be committed. For error, 
politically, is out of the question. Every such assembly is itself a 
convention of the people. Its last declaration, as it is the freshest 
expression of the public will, is also a full expression of the sovereign 
power of the state. 

But there is no democratic republic which has existed, in which the 
inconveniences, not to say the manifold evils, which spring from such 
a scheme of government, have not been felt. There is not one which 
has not departed widely from the theory on which it professed to be 
founded. Solon drew up a body of laws for the Athenian state, and 
Lycurgus one for Sparta. But this departure from the naked theory 
of democratic government was not a step taken in favor of represen- 
tative government. It was the introduction of a capital feature of 
monarchical government. It was a recognition in disguise of the 
one man power. Nor was the case very different with the Roman 
decemvirate. Commissioners sent abroad to make a selection from 
the laws of other countries, and exercising their own judgment as to 



190 



NATURE AND TENDENCY 



[book II. 



what ordinances would be adapted to the Roman community, is very 
different from a convention assembled among the people for whom the 
new code is to be framed, drawing instruction from a deep and careful 
survey of the form of society which lay before them, and suiting the 
laws exclusively to their domestic interests. 

Fortunately for most nations which have been inclined to establish 
popular government, the extent of territory has opposed an insur- 
mountable obstacle to carrying out the naked theory of democratic 
government, while the extent and diverse character of the population 
have been equally fatal to the attainment of a predominant influence 
by one or two individuals. It becomes impossible for the people to 
assemble in mass, and still more so for them to perform the duties 
which appertain to an executive and judicial magistracy. This com- 
pels the adoption of the principle of representation in every one of 
the political departments. Representatives, when convened under this 
plan as a legislative body, pass laws from time to time, as the exigen- 
ces of society require, until at length these laws become so numerous, 
and the chief part of them so adapted to the leading and permanent 
interests of the population, that they lose the character of mere tem- 
porary regulations, and are erected into a system of fixed rules for 
the government of the community. That is, they acquire a higher 
dignity and greater importance than they had before, notwithstanding 
they are not passed by the people, but by the people's deputies. The 
restrictions imposed upon the law-making power increase its solemnity, 
because they require a more exact and undivided attention to the 
duties which appertain to it, than would be possible in an assembly of 
millions or thousands, convened on one day, and dispersed the next. 
For in the first place, in a country of wide extent, and whose people 
are fitted for self government, there will very naturally, if not neces- 
sarily, be a constitutional ordinance, prescribing the duties of the 
legislator and the limits of legislation. And in the second place, 
representatives, acting on behalf of others, in order to give any intel- 
ligible account to those who have deputed them, are obliged to proceed 
with considerable care in the preparation and consideration of bills. 
The laws are no longer carried by acclamation, but are conducted 
through a long and tedious process; and the language in which they 
are expressed is endeavored to be made precise and perspicuous, in 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



191 



order that the constituent may understand how the deputy has dis- 
charged his duty. 

Thus representation, which was at first intended to cure one defect 
in democratic government, that is, to facilitate the transaction of pub- 
lic business, comes in process to cure all defects, by substituting, as 
nearly as humanly speaking can be done, a government of laws in the 
place of one of force. The people are the real lawgivers, the mem- 
bers of the legislative body their agents only; and yet, in consequence 
of the double machinery which is employed, the laws are made to 
reign supreme over the people themselves. For not only is the pas- 
sage of all laws attended with certain solemnities, and published in a 
form which renders them accessible to every one; there is another 
circumstance which contributes to impress upon them the character 
of a system. The greater the number of persons for whom the laws 
are made, the greater must be the generality of the rules which they 
will contain. It is not difficult to legislate for a small number of in- 
dividuals, or for a considerable number collected in a small space, by 
particular enactments. But there is no way of legislating for mil- 
lions, inhabiting an extensive country, but by very general laws. We 
then make abstraction of every thing peculiar to the individual, and 
take account only of those circumstances in which they all 
agree. 

It is in proportion as the laws acquire this character of abstract 
general rules, that they are fitted to exercise authority over the minds 
of men ; and that in proportion as the territory is enlarged, and the 
population multiplied, the restraint which is imposed upon society is 
augmented. To reconcile a high degree of freedom with a due au- 
thority on the part of government, is one problem which political 
philosophers have proposed to themselves. If we take refuge in 
monarchical or aristocratical government, we do indeed arm the public 
authority with a mighty power ; but it is at the expense of popular 
liberty. If we have recourse to democratic government, we do not 
succeed in introducing a noble and generous freedom into the com- 
munity, while at the same time we detract materially from the 
authority of the laws. Representative government, which is then the 
only alternative, is also the most natural direction which the institu- 
tions can take : the one which promises to answer all the desired ends, 
as well as we are permitted to expect. 



192 



NATURE AND TENDENCY 



[book a. 



Government, in order to fulfill the notion of a wise and useful insti- 
tution, should aim to connect the private welfare of individuals with 
the public good of the state. To lose sight of the former — to suppose 
that the proper idea of government was that it had regard exclu- 
sively to public affairs, and took little account of men's private inter- 
ests, would be to form a very inadequate conception of it. The 
political institutions are an accessary to a great end, rather than the 
end itself. To permit the various occupations of individuals to be 
conducted with freedom and security, is the final aim to which they 
should tend. But in the pure form of democratic government, the 
legislative, executive, and judicial powers would all be wielded by the 
same persons in mass; incumbering every one with such a multi- 
plicity of public business, that their private affairs would go to ruin ; 
and the people, would cease to be men, in their efforts to become citi- 
zens ; when the maxim should be, that in order to become citizens, it 
is first necessary to become men. And in such a constitution of 
society, the public interests also would fall to decay, as there would 
be wanting that concentrated attention which is indispensable to a 
skillful management of them. Representation, by applying the prin- 
ciple of the division of labor to the affairs of government, overcomes 
these difficulties. By collecting into a general system those rules 
which are intended to preside over the common interests, it gives 
additional authority to the laws ; by abstaining from intermeddling 
too often and too minutely with the actions of individuals, it gives 
security and contentment to the people. 

There is another view equally important. Men, even in the prose- 
cution of business, have separate and selfish interests which they are 
ever intent upon gratifying. In a legislative assembly composed of 
a vast multitude, public and private interests would be confounded. 
The elective principle, without intending any such thing, effects a 
separation of the two. The number of private ends which are sought 
to be gratified will be diminished as the assembly diminishes ; not 
only because the number of individuals exposed to the temptation is 
reduced, but because the power of gratification is less. With no 
more wisdom, and fully as much selfishness as the great majority of 
mankind, the members of this body are now placed in a situation 
where their attention will be more exclusively fastened upon the pub- 
lic interests, and one also which exposes their conduct more than 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



193 



ever to the scrutiny of other men. The people say to their deputies, 
as we are physically precluded from looking after our private ends, 
we will, in revenge, observe your conduct more strictly. The deputies 
on the other hand, although it may conflict with their private ends, 
are obliged to assume a character of earnestness and of devotion to 
the public business. They endeavor to place before themselves a 
standard of right by which to shape their conduct. A representative 
body in other words, to make use of a homely phrase, operates as a 
strainer in separating the good from the bad qualities of individuals. 
It brings the public interests out in bolder relief, and weakens the 
cupidity of private persons. 

An assembly so constituted is eminently favorable to reflection, not 
merely among its own members, but among the community at large. 
The distribution of property and knowledge, in modern times, has 
created a wide basis for government to stand upon. But as it has 
multiplied the number of persons who have an interest in public 
affairs, it has increased the intensity of party spirit. The legislative 
body has stated times for convening ; it does not meet, like the popu- 
lar assemblies of antiquity, on every gust of wind which may blow 
over the commonwealth. Between the first ebullition of public feeling 
and the time appointed to deliberate, six months or more may elapse. 
This interval is eminently favorable to reflection : not merely because 
it gives opportunity to so many minds to calculate the consequences 
of a proposed line of action, but because time itself has a sedative in- 
fluence, and calms the most agitated passions. Or if we suppose that 
some event of a very exciting character has occurred, when the legis- 
lature is on the eve of assembling, the set forms of proceeding to which 
such a body is addicted, and to which it becomes singularly attached, 
enable it easily to postpone the final determination for months, or even 
" to the first day of the succeeding session." The people willingly ac- 
quiesce in this delay on the part of their deputies, when they would 
not listen to it in a tumultuous assembly of themselves. The claim to 
the whole of Oregon would have been carried by acclamation in a 
popular meeting, when first proposed. But as the question had to be 
deliberated upon in a representative body, whose responsibility was 
increased, because they were acting for others, and not merely for 
themselves, it was held under consideration for three years. And the 
manner in which it was finally adjusted, although so different from 



194 



NATURE AND TENDENCY 



[book II. 



what was at first expected, met with a more hearty and unanimous 
approval from the American people, than almost any other public 
measure which has been adopted. 

Thus representative government is highly favorable to reflection, 
both in and out of the legislative body. It no longer speaks to itself 
alone, as was formerly the case. So far as regards the mere form of 
deliberating, the assembly sits within the four walls of the capitol. 
But for all important purposes, the whole state may be considered as 
an extension of those walls. If there is any species of information 
which is widely disseminated, it is that which relates to what is 
transacted in those walls. This is conveyed not once, and in one 
form only, but repeatedly, and in every variety of shape, so as to gratify 
the utmost inquisitiveness, and to . rouse the attention of the most 
censorious observer of public affairs. It has been finely remarked, 
that one office which men of high intellectual endowments perform, is 
to act as instruments of communication between the intellectual 
world and society at large. And a representative body, with all its im- 
perfections, performs a service of a very similar character. 

There is no one circumstance in the history of modern communi- 
ties, which more strikingly displays the great changes which have been 
wrought in the general structure of society, than the manner in which 
business is now conducted in a legislative body. There was a time, 
and that not very remote, when such an assembly did not pretend to 
deliberate upon, or in any sense of the word to conduct, the public 
business in person, but devolved the whole burden upon a handful of 
individuals. Thus the Scotch parliament, which was composed of the 
three estates of the clergy, nobility, and burgesses, never sat except 
on the day of meeting, and the day of adjournment. On the first, it 
made choice of a committee, styled, " lords of the articles," which was 
composed of three persons from each of the estates. And this com- 
mittee drew up all the bills, and transacted the whole business. On 
the day appointed for the adjournment, these bills were submitted in 
mass to the parliament, and were all on that same day either ap- 
proved or rejected. There was no free, open investigation, no debate, 
no account taken either one way or the other, of the serious conse- 
quences which might result from the proposed laws. Very similar 
was the mode of proceeding in the boasted Italian republics. The 
law was no sooner proposed, than the votes of the different orders 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



195 



were immediately taken. It is very easy to understand, what other- 
wise seems to be a riddle, how it comes to pass that a legislative 
body, whether composed of one or more chambers, sat in one apart- 
ment. As there was no discussion, none of that bold and inquisitive 
spirit which now finds its way into such an assembly ; as, in short, 
every thing was conducted in silence, the several estates or orders 
might very conveniently meet in the same hall. The mode of 
conducting the legislative proceedings in France was even worse than 
in Scotland or Italy. Madame de Sevigne, in her letters, has given 
a very animated description of the fashion of doing business. The 
canvassing the demands of the crown, the inquiry whether any and 
what taxes should be imposed, was not made in the legislative halls, 
but was carried on at the table of the nobleman who had been com- 
missioned by the king to preside over the estates, or provincial legis- 
latures ; and every thing was carried by acclamation. 

If there is any danger at the present day, it is of running into the 
opposite extreme. But it is better to err on that side. A super- 
fluity of debate is infinitely better than none at all, or even than too 
little. It affords unequivocal evidence of two things: 1st, that the 
interests of the great body of the people have grown to be something ; 
and 2d, that the deputies of the people are compelled to set them- 
selves earnestly to work, in order to acquire a competent knowledge 
of public affairs. In every deliberative assembly there are always a 
few individuals who stand out prominently above their fellows, and 
who succeed in fixing public attention. But it would be a great mis- 
take to suppose, that the speeches of other members, of inferior endow- 
ments, were unworthy of notice ; that they were to be regarded as 
empty and prosy harangues. It not unfrequently happens, that the 
reputation of a public speaker is not so much owing to his intellectual 
power, as to some external advantages. Some men succeed full as 
much in consequence of their physical, as of their mental, organization. 
And one is often perplexed, on reading the speeches of a leading mem- 
ber, to account for the fame he has acquired. The speeches of some 
other members are as full of good sense, and contain views as just and 
as comprehensive. Nevertheless, it is the fashion to regard these last 
as intruders into the debate, and, as hampering the public business by 
their everlasting " longueurs." 

It is the population residing beyond the walls of the state house 



196 



NATURE AND TENDENCY 



[book a. 



who in our modern societies constitute the real and effective audience ; 
and to them a sensible speech is always interesting, although the voice 
of the speaker may be unmusical, and his manner ever so ungainly. 
It was remarked of one of the most eminent statesmen America has 
produced,* that while he sat in the house of representatives, he gave 
marked attention to the speech of every member. There was hardly 
an instance, he observed, when he did not derive instruction, or when 
new views were not suggested to him, by the speeches of persons of 
even inconsiderable reputation. There was more wisdom in the ob- 
servation, than would at first strike the mind. The habit contracted 
by this eminent statesman, gave him a thorough insight into the 
workings of other men's minds, and was one cause of the remarkable 
intellectual ability which he himself displayed. Doubtless there is a 
reasonable share of egotism to be found in every large assembly of 
men. But even egotism may sometimes become our instructor. For 
as it supposes a desire to obtain the public approbation, and as that 
approbation is very insecure, unless there is substantial merit, the 
representative, even in his efforts to attract the notice of his constitu- 
ents, is obliged to make himself acquainted with the merits of the 
questions he undertakes to discuss. And as I have already observed, 
even if the speeches are unnecessarily prolix, there is an incidental 
advantage attending their delivery; they keep the public mind in 
abeyance, and contribute by their very defects to cool the feelings 
and mature the judgment. It might be supposed that the danger 
would be on the other side ; that the country would be kept in a state 
of feverish excitement in consequence of the inflammatory harangues 
of demagogues. But the day of inflammatory harangues is gone by, 
when the competition for public speaking becomes so great as it 
necessarily is in a country of free institutions. Like every thing with 
which we become abundantly familiar, those harangues pall upon the 
appetite, and make us ardently desire to hear something truly brilliant. 
In ninety-nine cases in a hundred, the inflammatory speaker succeeds 
in inflaming none but himself. 

Shall the legislative power be divided ? shall it consist of two or 
more branches? is one of those questions which the human mind 
hardly ventures to debate any longer. Public opinion every where, 



William Lowndes. 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



197 



and in every form of government, except the absolute, has determined 
it in the affirmative. In the ancient commonwealths, in the limited 
monarchies of modern Europe, and in the United States, the division 
of the legislature has been regarded as an axiom in politics. An in- 
stitution which is founded upon long-established custom, and which 
has apparently adapted itself to almost every form of society, has on 
that very account a strong claim to respect. This claim, however, 
must not be looked upon as absolutely decisive ; for it is a fact of as 
ancient and as universal notoriety, as any other which falls under our 
observation, that the human mind is wonderfully disposed to accom- 
modate itself to what it finds to be the established order of things. 
Here are two principles set over against each other ; a consideration 
which should make us exceedingly careful, but which should by no 
means dissuade us from a critical examination of the subject. 

The distribution of society into classes was, doubtless, the founda- 
tion of the division of the legislative body. Where this classification 
did not exist, or where the inferior classes occupied an exceedingly 
insignificant position in the state, the legislature was seldom a plural 
body. Thus, in the earlier stages of English history, the great coun- 
cil was composed of the wise men, or barons only ; holding their seats, 
not by virtue of an express authority delegated to them, but by a 
tenure as firm, and as independent, as that of the king. 

Society in its rude beginnings is held together chiefly by the force 
of the imagination. Where there is an immense disparity in the 
condition of the upper and lower ranks, where the first possess nearly 
all the property, the superstitious reverence which this circumstance 
inspires, irresistibly invests them with the legislative authority. But 
in proportion as society advances, and a different distribution of 
property takes place, whether this is occasioned by the civil wars 
of the barons, which crumble their property, or by the growth 
of trade and industry, which raises up an entirely new class, this 
superstitious feeling loses its hold upon the mind. The appropriation 
of nearly all the property by the barons, conferred upon them an 
exorbitant authority in comparison with the great majority of the 
population ; and the gradual division of this property, whether in fee, 
or in lease, afterward transfers some portion of that authority to 
other parts of society. A class below the nobility makes its appear- 
ance, first in the towns, and afterward in the country, and this class 



198 



NATURE AND TENDENCY 



[book II. 



finally succeeds in obtaining a distinct and independent position in the 
community. While this new class is imperceptibly growing to man- 
hood, the rivalry and disputes between the king and nobility reveal 
its importance, and enable it actively to assert a power which lay 
dormant before. The people have now got to be something, because 
their intervention in the controversies of the day may be turned to 
account by one or other of the parties. They now elect their own 
representatives, and this gives occasion to another chamber of the 
legislative body. 

But on a further advance of society, the change becomes more 
marked and important. The barons dwindle into a mere handful. 
They cease to be even virtually the representatives of the community. 
Their weight in society is personal, rather than that of a class. If at 
an early period their number is small, this is compensated by their 
possessing the entire moral power of the state. At an intermediate 
stage their numbers and wealth are both diminished, but not so sen- 
sibly as to dej)rive them of their claim to constitute a separate branch 
of the legislature. At a still later period, their number is not only 
reduced, but their wealth becomes insignificant when compared with 
that of the aggregate of the population. The division of the legis- 
lative power then loses its original meaning : it no longer stands upon 
the same foundation as formerly. And it becomes not merely matter 
for curious, but for strictly legitimate, inquiry, whether the plan shall 
be preserved. Society may have undergone great alterations, so that 
the causes which led to a particular political arrangement may have 
ceased to operate ; and yet others may have sprung into existence, 
which equally demonstrate its utility. Perhaps the very prejudices 
which surround an ancient institution, may help us to ward off some 
other infirmity to which we will be exposed in constructing a new system. 

In an old and established government there is this difficulty; the 
division of the legislature was not the result of any set design. 
Society fell into the arrangement at a period when circumstances 
controlled men instead of their controlling circumstances. The insti- 
tution grows into an usage, which incorporates itself with the habits 
of thinking of every one. This gives it so firm a hold upon the 
imagination, that the legislator hardly feels as if he had power, much 
less has he the inclination, to interfere with it. In. a new society, and 
new government, the case is different. If there is no regular 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



199 



classification of society, no subordination of rank, and the principle of 
representation is introduced, and yet the division of the legislature 
has been copied from older states, its entire want of adaptation either 
annuls its influence, or the influence which it has is of so vague and 
doubtful an appearance, as to withdraw public attention altogether 
from the consideration of it. 

De Lalme is almost the only writer who has undertaken to examine 
this question. The reasoning is very ingenious. "Whatever bars," 
he says, " a single legislature may make to restrain itself, can never 
be relatively to itself, any thing more than simple resolutions ; as those 
bars which it might erect to stop its own motions, must then be within 
it, and rest upon it, they can be no bars." This is undoubtedly true, 
if the members hold their seats by hereditary right, or where, being 
elected, the tenure is long, and the electoral franchise exceedingly 
restricted. But where the entire legislative body is chosen by popular 
suffrage, and for a limited period, a new principle rises up and takes 
the place of those bars, to wit, the responsibility of the members to 
their constituents. The condition which De Lalme was in search of, 
in order to restrain the legislature, is then found. The bars are truly 
without, and not within, the body. De Lalme, although investigating 
a general principle, confined his attention exclusively to British society, 
where, from time immemorial, the distinction of ranks existed : nor did 
he frame to himself any just conception of a commonwealth, where 
privileged orders had no place, and where the responsibility of the 
members shall be so direct and immediate, as to create an inevitable 
check upon their conduct. 

From this view, it would seem to follow, that the question, shall the 
legislature be divided ? depends upon the mode of election, and the 
tenure of the members ; in other words, upon the provision which is 
made in the system for giving effect to the principle of responsibility, 
and not upon the nature of the power which is exercised. In most of 
the European states, the legislative body is composed of a class of 
nobles and of deputies chosen by the people ; and as these two orders 
are supposed to have contrary interests, each is protected against the 
encroachments of the other, by both possessing co-ordinate authority, 
and consequently the right to veto the acts of each other. No such 
reason exists in a democratic republic. Indeed, one great design of 
that form of government is to unite together, as far as is practicable, 



200 



NATURE AND TENDENCY 



[book II. 



the different classes of which society is composed^ instead of inventing 
devices for keeping them asunder. It is on that very account that 
the principle of representation is introduced into every department of 
the government. All the members of the legislative assembly are 
elected, and the reason is not very apparent why they should be dis- 
tributed into two, any more than into three or four chambers. This 
incongruity between the institution and a democratic form of society, 
may be productive of one or other of two results. It may give rise 
to much confusion and inconvenience in the working of the govern- 
ment, or its tendency to produce that effect, may be neutralized by 
the otherwise skillfull structure of the body : the dead principles may 
be countervailed by the living one with which it is incorporated. 
When the last is the case, the institution degenerates into a mere 
formal arrangement, which is preserved simply because it is found to 
be part of an old-established system. If no glaring inconvenience ie 
perceived, people very easily persuade themselves that the institution 
is not only wise, but that it is an indispensable part of the machinery 
of free government. 

Other reasons however, than those I have referred to, may be 
assigned for this mode of organizing the legislative body. It may be 
argued that, it is calculated to introduce more reflection into the public 
deliberations than would be the case if the body were a single one. 
The United States is the only country which affords much light upon 
this part of the subject. So far as regards the state governments, 
and I purposely confine myself to them at present, it is by no means 
certain that experience justifies the conclusion. Perhaps, on a very 
close and attentive observation, it would be found that the division of 
the body has been productive of increased violence and exacerbation, 
although in ways which are at first calculated to elude observation ; or 
it may be, that a predominant idea having once taken possession of 
the mind, its influence is not easily weakened by all the observation 
which we have made. 

In order to execute this plan of accompanying every legislative mea- 
sure with a greater degree of reflection, it would seem to be necessary 
that the mode of electing the two chambers should be different, or that 
at least, the terms for which the members of the two are chosen should 
be of different duration. In both respects, there is little or no dis- 
crimination in much the greater part of the state governments. In 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



201 



Maryland the senate was formerly elected, like the president of the 
United States, by a college of electors. But this feature in the old 
constitution has been superseded by the ordinary and more natural 
plan of direct choice. In Massachusetts, New Hampshire, North and 
South Carolina, a property qualification is necessary to entitle to a 
seat in either house. And the amount of property necessary for a 
senator is double that which is requisite for a representative. But, 
in the great majority of the states, no distinction exists. In Virginia 
a property qualification is indeed demanded of both senators and 
representatives, but the qualification is the same in both instances, 
and is none other than is required of the electors themselves. 

As to the duration of the term ; in some states senators and repre- 
sentatives are elected for the same term. This is the case in Maine, 
Massachusetts, New Hampshire, Connecticut, Rhode Island, New 
Jersey, North Carolina, Georgia, and Tennessee. In Maryland sena- 
tors are elected for six years. In Delaware, Mississippi, Arkansas, 
and Illinois, for four ; but in these states the sessions of the legislature 
being biennial, the four years is equivalent to two terms only. In 
Virginia, South Carolina, Kentucky, Louisiana, and Missouri, they 
are elected for four years, and the legislature meets annually. In 
Pennsylvania, Indiana, and Alabama, they are elected for three, and 
in New York, Michigan, and Ohio, for two. And in these six last 
states the legislature also sits annually. The only states in which 
representatives are chosen for two terms, are South Carolina, Louis- 
iana, and Missouri. 

All this shows an exceeding variety in the mode of composing the 
two chambers, or at least in the outward form which they are made 
to assume ; and indicates, moreover, that the notion of giving to 
senators a more independent tenure than to representatives, in order 
to create a balance between the two bodies, was often entirely lost 
sight of, and in no instance thoroughly carried into practice. The divi- 
sion of the legislature was copied from older communities, in which a 
regular subordination of ranks existed. But in America, there was 
no similar classification of society, and the materials for constructing 
an upper house on the European model were entirely wanting. 

In some of the states candidates for the senate must have attained 
a higher age than those for the house. But the distinction in this 
respect is so small as to create no material difference in the 



f 



202 



NATURE AND TENDENCY 



[book II. 



constitution of the two chambers. In no state does there appear to have 
been the least design to create a council of elders. But the scheme 
of a plural body having been adopted, it was necessary to give color 
to it, by creating a distinction, however unimportant it might be. 
Age undoubtedly, in the great majority of men, contributes to extend 
the circle of their ideas, and to mature the judgment. It would be 
difficult to fall upon any precise rule, applicable to all men, as there 
is not only a very great difference in the natural faculties of individ- 
uals, but a great difference also in the ripening of different minds, 
which possess equal power. Forty-five has been supposed to be the 
earliest period at which, in the average of men, the judgment is 
thoroughly matured, and the knowledge and experience which have 
been previously acquired, may be made available to the business of 
public life. But in no state, except Kentucky, is a higher age than 
thirty required, in order to entitle to a seat in the senate. In most 
of the states the candidate need not be more than twenty-five ; and 
in Connecticut, New York, New Jersey, Khode Island, and North 
Carolina, persons who have attained twenty- one years are eligible to 
either house. The provisions on this subject also show how very 
imperfectly the scheme of balancing one body against the other has 
been accomplished. In some respects the age of five and twenty is 
more unfavorable than twenty-one. The young man just arrived at 
majority is apt to be more diffident, to distrust his own powers, than 
he would if four or five years older. At five and twenty we feel more 
confidence, a greater degree of self assurance; even though there 
should be less ability to second our efforts. I am not sure therefore 
but what the constitutions of Rhode Island, New York, New J ersey, 
and North Carolina have adopted the wisest plan. A man at twenty- 
one may be both more discreet, and better informed, than one at 
twenty-five. A man at twenty-five is sometimes superior in both 
respects to one at forty-five. Instead of establishing an unchange- 
able rule, the best plan is to defer the matter to the electors, and 
enable them to exercise their judgment in making the selection. 
Legislation in the United States is not, as in some other countries, an 
affair which is exclusively engrossed by the nobility and gentry. It 
is a matter in which the great bulk of the population have a deep 
stake ; and in which consequently they are made to take an active 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



203 



part. Their observation and experience, although not affording an 
unerring guide, will ever prevent them from going very wrong. 

There is another feature in which the upper and lower houses of 
the American legislatures differ. The last is invariably the most nu- 
merous body. But where the constitution of the two is in other 
respects substantially the same, this difference is little more than an 
arrangement of detail. One can easily conceive of an upper house 
composed of so few, and of a lower of so great, a number of members, 
as to create a complete antagonism between them. This was the 
case in the Athenian commonwealth, where the senate consisted of 
one or two hundred, and the popular assembly of eight thousand. It 
was so, also, in the Roman state, where the senate contained three 
hundred, and the comitia of the centuries, or tribes, twenty or thirty 
thousand. But the disparity in point of numbers, as well as in other 
respects, is so inconsiderable in the American states, that if there is 
any efficacy in an upper house, it is doubtful whether it is not at- 
tributable to the name, rather than the thing. We call it an upper 
house ; figure it to ourselves as the most dignified body of the two ; 
and thenceforward a firm conviction takes possession of the mind, that 
it must perform some office distinct from, and of superior utility to, 
that performed by the other house. In the English government, the 
house of peers is a less numerous body than the house of commons : 
the former consisting of four hundred and thirty-nine, and the last 
of six hundred and fifty-eight members. But the different operation 
of these two bodies, does not arise in the smallest degree from that 
circumstance. It is not the fewness of the number, but the fewness 
of the class, which renders the house of peers a totally different body 
from the house of commons. The former represents itself ; the last 
represents millions. So that if the upper house were the most nu- 
merous body of the two, and yet the constitution of both was in 
other respects precisely the same as at present, the operation of the 
system would be the same. 

Copying after English precedents, the American governments have 
sometimes sought to establish a difference in the functions, as well as 
in the composition, of the two chambers. Thus, in some of the states, 
money bills can only originate in the lower house. This is an arrange- 
ment which is obviously without meaning or utility in the local gov- 
ernments. It has accordingly been dropped in the constitutions of 



204 



NATURE AND TENDENCY 



[book ft. 



Connecticut, Rhode Island, New York, Ohio, Illinois, Michigan, and 
Arkansas. The members of both chambers are equally representa- 
tives of the people, and no very solid reason can be assigned, why any 
bill should not be permitted to originate in either. One thing is cer- 
tain, that notwithstanding the efforts which have been made to create 
an artificial distinction between the two bodies, they remain essen- 
tially the same. This it is which constitutes a distinguishing feature 
of American institutions; that we may vary the paraphernalia of 
government as much as we please, but it still obstinately persists, in 
every one of its departments, to be a government based upon the 
popular will. In other countries, the different structure of these de- 
partments is occasioned by great diversities in the organization of 
society. The difficulty is how to retain these, and yet to obtain so 
much uniformity in the character of the population, as to dispense 
just and equal rules to all men. In America, this substantial requi- 
site is already obtained, and American legislators can therefore afford 
to make experiments as to the mere outward form which their institu- 
tions shall wear. America may copy after Europe ; but the great 
problem is, can Europe copy after America? 

The materials then for constructing an upper house, such as they 
exist in Europe, are entirely wanting in America, and I have doubted 
(for it is perhaps impossible to pronounce an opinion absolutely de- 
cisive when the question is of taking down an old, not of erecting a 
new, institution) whether it was worth while to adhere to the prin- 
ciple of a division of the legislature in the state governments. The 
difference, however slight, in the tenure by which the members of the 
two chambers hold their seats, causes them sometimes to represent 
different parties: and this reflection of opposite opinions lays the 
foundation of a spirit of rivalry and animosity, which impedes the 
progress of business during a whole session. A single body having 
the public eye intently fixed upon it, and not distracted by the 
shuffling and the maneuvering of two chambers, would feel a more 
thorough, because a more undivided, responsibility to its constituents. 
The true office of a minority consists in its influencing, not governing. 
If the legislature consisted of a single chamber, the predominant 
party would abstain from those extreme measures which it is now 
driven to vindicate, in consequence of the equally extreme measures 
which are defended by the chamber of the minority. Each dares the 



chap, vii.] OF FREE INSTITUTIONS. 205 

other to do as it says ; each obstinately clings to its own opinions, 
because each knows that neither can possibly be carried, and in this 
way, both have in repeated instances endeavored to fly from the re- 
sponsibility which they owed to society. 

This is the reason why the veto of the governor, on bills passed by 
the legislature, has been abolished in nearly all the American states. 
That power was at one time supposed to answer the same purpose as 
the division of the legislature : to maintain a salutary check upon 
that assembly. But experience has demonstrated that it is as well, if 
not better, to place the legislative body in a situation where it will 
feel the undivided weight of the responsibility imposed upon it. 

It sometimes happens, that although the duration of the term for 
which senators and representatives are chosen is the same, that the 
two chambers still reflect the opinions of different parties. This cir- 
cumstance is ascribable to various causes. Sometimes it is in conse- 
quence of the mere difference of the number of members which 
compose the two chambers. TJie districts in which senators are 
elected will naturally be larger than for representatives. And 
although the qualifications of the electors may be the same in both, 
yet where parties in the state are pretty evenly balanced, a different 
territorial division will give rise to different results in the selection of 
the members. This was recently the case in Tennessee, where sena- 
tors and representatives are elected for the same term. The 
melancholy spectacle was presented of one house obstinately refusing 
to go into an election, because, on joint ballot, the vote would be 
unfavorable to the predominant party in the house. It is a striking 
proof of the soundness of public opinion in America, that where a 
course of conduct of this character has been pursued, one so alien to 
the genius of free institutions, it has terminated in the overthrow of 
the refractory party. The ballot box at the succeeding election has 
converted the majority into the minority. But in none of the other 
nine states, where the term of senators and representatives is the 
same, do I recollect to have heard of such unjustifiable proceedings. 
This conduct, and other of a similar character, has been confined to 
those states where the duration of the term is different. 

There i3 one of the American states in which, until recently, the 
legislature was composed of a single chamber. This is Vermont. And 
it is certain, that in no state has the course of legislation been more 



206 



NATURE AND TENDENCY 



[book II. 



uniformly marked by good sense and propriety ; in none has there 
been a more watchful attention to the interests of the peoble. At an 
early period, the legislature of Pennsylvania was also a single body. 
This arrangement was altered before there had been sufficient time to 
test the experiment. The brilliant repartee of Mr. Adams in answer 
to Dr. Franklin, who was in favor of a single chamber, captivated the 
minds of men, and was decisive of the question, at a period when the 
fashion of thinking in America was so much molded upon European 
institutions. 

De Lalme attributes the wise and circumspect conduct of the 
English parliament to its division into two chambers. But the theory 
of the constitution was precisely the same in the times of the Tudors, 
and Stuarts, as when De Lalme wrote. At the latter period, 
England enjoyed a considerable share of internal tranquillity, because 
the people, having risen in importance, had become a sort of make- 
weight in the government. During the two former periods, the 
government was little better than a despotism, and the laws were 
frequently the most iniquitous imaginable. So great a revolution, the 
theory of the constitution remaining the same, can only be accounted 
for, by supposing that some equally important change had taken place 
in the structure of society, and consequently, in the practical working 
of the government. And this change consists in nothing less than 
the gradual elevation of the popular body, and the creation of a well- 
defined tribunal of public opinion which, impressing its authority 
powerfully upon the whole system, has maintained each department 
in its proper place. These are the bars which have been erected to 
fence off the encroachments of the legislative power. The condition 
which De Lalme demanded is obtained. The bars are not merely 
without the chambers ; they are without the entire body ; and are 
much more effectual than any curious adjustment of the interior 
mechanism of the government. 

I have, in a preceding chapter, alluded to the very important balance 
which is maintained between the government and the power out of 
the government ; and the British constitution, at the time De Lalme 
wrote, and still more at the present day, affords an instructive exam- 
ple of it. Construct government as you will, if it is afterward left 
to itself, and permitted to command its own motions, the power it 
wields may be distorted to any purpose. But if there is a corres- 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



207 



ponding power — a presiding influence without — which subjects it 
unceasing to the action of public opinion, even a faulty arrangement 
of the parts will be corrected. The English chambers no longer en- 
croach as they formerly did on each other's rights, nor on the rights of 
the people ; because the popular body has become the first estate in 
the realm, and holds in check, both the king and nobility, as well as 
the commons. This is the simple explanation of the difficulty : and 
if one born under the Henrys could rise from his grave, he would be 
struck with amazement, at finding that British councils were con- 
ducted with so much more skill and wisdom than formerly ; and that 
public men, in spite of the selfish interests which fill their bosoms, are 
placed under a restraint, from which the most powerful standing 
army could not deliver them. 

In the times of the Tudors and Stuarts, riot to go back to a still 
earlier period, the legislative power was divided as it now is. But 
under those princes, the country was either ruled by a stern and 
rigorous despotism, or it was a scene of incessant broils. At the 
present day, a species of virtual representation has been established 
in both houses of parliament, which, although it falls far short of an 
actual representation, has had power sufficient to work a most striking 
alteration in the conduct of public affairs. 

De Lalme also attributes the remarkable solidity of the power of 
Great Britain, in part, to the division of the legislature. But this is 
a circumstance which is not peculiar to that country. The same 
thing is observable of all the kingdoms and principalities of nor- 
thern and central Europe, in some of which there is no proper 
legislative body ; in some the legislative body consists of a single 
chamber, and in others of more than two chambers. The compact 
and vigorous authority of the royal power in Russia, Austria, Prussia, 
Sweden, and Denmark, is quite as remarkable as it is in Great 
Britain, and affords a strong contrast to the feeble condition of the 
crown in Spain and Portugal, in both of which there are two cham- 
bers modeled after the English system. 

This singular stability of the royal power throughout the greater 
part of the kingdoms of Europe, a circumstance of apparently evil 
omen to the growth of popular power, but in reality favorable to it, is 
mainly ascribable to the fact that the most absolute monarch s are 
insensibly accommodating themselves to the new ideas of the age. 



208 



NATURE AND TENDENCY 



[book II 



They are more restrained, and are therefore permitted to be more 
secure. A king is compelled not so much to truck and huckster to 
the great men who surround the throne, as to cultivate the good will 
of the people. The close intercourse which now exists between all 
the European communities, has created a sort of informal league 
between them ; and one member, although far behind some of the 
others in civilization, is powerfully acted upon by the institutions 
which exist in those others. Although the condition of society is such, 
that no powerful middle class exists, as in Great Britain, to control 
the government, yet public opinion in Great Britain, in France, 
Belgium, Holland, and throughout nearly all Germany, exercises a 
potent territorial influence, and is insensibly begetting habits of think- 
ing and acting among princes, totally different from what they were 
accustomed to formerly. This influence has even penetrated the 
Turkish empire, and the sovereign is accordingly a wiser and more 
discreet ruler, than were most of the English Henrys. He has con- 
sented to do what they never dreamed of — to draw up an instrument 
imposing limitations upon his own authority, to appoint a commission 
to digest a code of jurisprudence, after the plan of the celebrated code 
civil of France, and to establish a system of public schools for the 
education of the people. The influence has obviously come from 
abroad; and without indulging in any idle notions concerning the pro- 
gress of society, we may reasonably figure to ourselves a day when 
each of the European states will bear a resemblance to the various 
districts or provinces of one great commonwealth, and when the 
fashion of copying after those which have attained the highest civili- 
zation, will be even stronger and more general than it is at the 
present day. I know that when the most absolute sovereign of the 
north of Europe is concerting measures to introduce jury trial into his 
kingdom, that there is a power at work which belongs to the age, not 
to the individual. 

I would not be understood as maintaining that there are not good 
reasons for the division of the legislature in the European states, nor 
that this arrangement may not have been productive of advantage. 
Given, a constitution of society in which a regular subordination of 
ranks exists, and is firmly upheld by the laws, and it may be wise 
for a time, the duration of which it is difficult to calculate, to place 
the privileged order in a separate chamber. But there are other 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



209 



causes which have contributed to the wisdom of English councils, 
and the general security of civil liberty, which are absolutely over- 
whelming in comparison of the division of the legislature. And 
perhaps the period is approaching, when it will be advantageous for 
both government and people, that some different disposition should be 
made of that department, so that even if the plan of dividing it is 
adhered to, it may at any rate be placed upon a wider foundation. 

I have also, in treating of American institutions, confined myself to 
the domestic government of the states. And there does not appear 
to be any convincing reason why the division of the legislative power 
should be retained in them, other than that the institution has been 
incorporated in the general habits of thinking, and that an institution 
which is upheld by the imagination is sometimes as formidable and as 
difficult to be removed as any other. 

But the national government presents an entirely different case. 
It is a federal, and not a consolidated, republic ; and the most obvi- 
ous way of executing this plan, and maintaining the separate existence 
of the states, was to establish two chambers of legislation ; in one of 
which the people of the states should be treated as coequal sovereign- 
ties, and therefore entitled to the same number of representatives. 
An upper house was thus constructed, which instead of being com- 
posed of a body of nobles consisted, like the lower house of represen- 
tatives, of the people. But the apportionment of these representatives 
is different from what it is in the lower house. 

This plan of constructing a senatorial body is entirely new. The 
chamber of nobles in the German diet bears no resemblance to it, as 
the members hold their seats " de jure," and not by election. The 
American system, in this respect, may be said to constitute the tran- 
sition state, from the artificial structure of the upper house in all the 
European states, and the more simple and direct plan of founding it 
like the other house upon an equal representation of the people. The 
system may exert an unspeakable influence upon other communities, as 
it demonstrates the practicability of composing a senatorial body of 
other materials than an order of nobility, and shows that a house so 
composed may possess as great stability, and display as much wisdom 
and firmness, as any privileged body which has ever existed. The 
plan may suggest new views, to the enlightened minds which help to 
control the destinies of other countries. 
14 



210 



NATURE AND TENDENCY 



[book ij. 



But I am treating of free institutions generally, and not merely of 
the particular form in which they have been cast in the American 
union. The separate and independent existence of the members of 
the American confederation, was an accidental circumstance. The 
republican form of government cannot be maintained, in a country of 
considerable extent, without the establishment of local or domestic 
jurisdictions; but it may well exist, although those jurisdictions should 
not possess the extensive powers which belong to them in the United 
States. 

The question then presents itself directly — is there any solid rea- 
son for distributing the legislative power in a simple republic into 
two chambers ? and I am of opinion that there is, so far as regards 
the national assembly only. As, in such a form of government, the 
local jurisdictions would emanate from the aggregate authority of the 
state, instead of the central government emanating from them, the 
parts would neither be sovereign states, nor would they contain an 
unequal population. As a census is now taken in the United States, 
for the purpose of apportioning the representation in the lower house 
to the population ; so in a simple republic, a census would have the 
double effect of varying the limits of the several compartments, and 
adjusting the representation equally among all. There would then be 
no reason for constructing an upper house upon the principle which 
governs the composition of the American senate. There would be no 
reason for so doing, even if the territorial divisions were ever so un- 
equal ; but as these divisions would not contain sovereign states, there 
would be no motive for making them unequal at the commencement, 
and of course none for permitting them to become so after the gov- 
ernment had gone into operation. They would be created for the 
purpose of administering the local interests, pretty much on the same 
plan as these interests are administered by the state governments of 
America ; because in an extensive country, a single legislature, whether 
its character be national or federal, cannot, either easily or advanta- 
geously, superintend the vast amount of business which properly falls 
under the cognizance of government. I have in another chapter de- 
clared, that it would be a mistake to suppose, because the republic 
was a simple and not a confederate one, that therefore domestic 
jurisdictions could be dispensed with. Their use would be the same 
as that of the local governments in America ; but the mode of con- 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



211 



structing them would be different. In the United States, not only 
are the domestic legislatures a necessary part of the machinery of the 
government, but it would be impossible to get along without a great 
number of still lesser jurisdictions, subordinate to, and inclosed within, 
the state governments, such as county and township jurisdictions. 
And the same would be the case in any other community, provided 
the form of government were republican. 

We cannot expect that all the republics which may hereafter exist 
will be composed of independent states. Some may spring up in 
Europe, out of the consolidated governments which now exist. At 
any rate the question cannot be avoided, shall the legislative power 
in a simple republic be divided? 

I have said that I incline to the opinion that, so far as regards the 
national legislature alone, it should be. But my reasons are directly 
opposite to those which are assigned by De Lalme. He would divide 
the legislature in order to make one chamber control the other. This 
is the exterior bar to which he refers ; not a bar exterior to the whole 
body, and residing in the society, but a bar exterior to each chamber, 
and therefore imposed by each upon the other. In a democratic 
republic this principle of control is superseded by another of far more 
efficacy, because of more comprehensive influence : the responsibility 
of the entire body to the people who elect it. The bars are then not 
merely exterior to each chamber, but they are exterior to the whole 
body, and act with a force which is in constant activity. The defect 
now is the reverse of that of which De Lalme complains. The bars 
are too strong, instead of too weak. The control is too stringent, 
instead of being too easy. In other words, as the legislators are the 
mere agents of the people, and elected for a short period, not merely 
will they be constantly subjected to the influence of public opinion in 
all their deliberations, which is a most happy circumstance ; but there 
will be a constant tendency to the formation of a counterfeit public 
opinion also, which, in times of great party excitement, it may be 
difficult to distinguish from the other. This will unavoidably be the 
case in a country of wide extent. In order to condense public 
opinion, as it is termed, caucuses and cliques will be formed, and these 
may very imperfectly represent the opinions of the people. Public 
associations are the genuine offspring of free institutions; but it is 
not all associations which are entitled to this character. A knot of 



212 



NATURE AND TENDENCY 



[book II. 



busy, active politicians will sometimes succeed in robbing otter people 
of their opinions, instead of representing them. It becomes Very 
important, therefore, to place the legislative body in a situation where 
it will be enabled to distinguish the real from the constructive major- 
ity, and to protect the community from the machinations of the last. 
By dividing the body, the proceedings are attended with a greater 
number of forms, and with more solemnity. The discussions will be 
more thorough : the time consumed will be longer : add to which, 
dividing the body is like creating two bodies. The authority and 
influence attributed to it will be doubled, and all these circumstances 
will not only contribute to a clear perception of what is the genuine 
public sentiment, but will give to the body, or to one chamber at 
least, ability to resist the influence of the counterfeit representation 
without. It is, therefore, not with the view of detracting from the 
authority of the legislature, but of adding to it, and atoning for its 
weakness, that I would divide it. Doubtless it seems to be too 
strong, when it is carried away by the misguided passions of a part 
of the population, who cause their voices to be heard above those of a 
majority of the people. But this is a symptom of weakness, not of 
strength ; since it exhibits the body as a prey to the artifices of those 
who are not its real constituents. 

I have said that there are two essential properties of good gov- 
ernment : first, a susceptibility of receiving an influence from without, 
of being acted upon by society ; and second, a corresponding power of 
reacting upon that society. It is in order to conciliate these two 
opposite ends, that I would, in a country of wide extent, where it is 
difficult to collect and mature public opinion, divide the legislative 
body. 

But it does not follow that it is necessary to pursue the same plan 
in constructing the legislative power of the domestic governments. 
The great principle of responsibility has superseded the check which 
one chamber formerly exerted upon the other. And that principle 
should never be modified, unless it is necessary in order to render the 
responsibility more strict. Money bills could only originate in the 
lower house, because the constituents of the lower house were the 
persons upon whom the weight of taxation fell most heavily. The 
possession of the privilege was an effectual check upon the proceedings 
of the upper house. But where both chambers are composed of 



I 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



213 



representatives of the people, and the territory is of no greater extent 
than the American states, there does not appear to be any good reason 
for distributing the members into two chambers, unless it is that the 
plan is already identified with all the notions which have been formed 
of regular government ; and that it is sometimes as difficult to root up 
an idea, as it is to build up an institution. Vermont had a single 
chamber until 1836; and the business of legislation was conducted 
with the greatest wisdom and prudence. The see-saw legislation, the 
refractory conduct pursued by the legislatures of other states, were 
unknown, because the simple character of the body took away both 
the temptation and the ability so to act. 

The allusion to the plan of local governments suggests another 
view of great importance. There is a division of the legislature, 
which proceeds upon a totally different plan from that contemplated 
by De Lalme, and Montesquieu, and which is much more efficacious 
than the old scheme. It consists in a division of the power, and not 
merely of the body. American institutions afford the only fair exam- 
ple of this plan. The legislative power, in this great commonwealth, 
is not devolved upon one body; it is divided between the national 
assembly and the thirty legislatures of the states. The powers 
which appertain to the domestic interests of the states are separated 
from those which relate to their exterior interests, and thus an 
arrangement, which was originally intended to answer one purpose, 
has the effect of answering another equally important. The care of 
the national interests is intrusted with the congress ; that of the local 
interests with local assemblies ; so that whatever might be the con- 
stitution of these thirty-one bodies, whether they were each composed 
of a single or a double chamber, the legislative power would be 
effectually divided. This arrangement is productive of far more 
important results than a mere division of the body. It is true, we 
may call it a division of the body. We may say that the whole 
legislative power of the union is confided to sixty-two chambers. 
But we should then lose sight of the principle on which the division 
is made, as well of the manner in which it operates. It would be 
correct to say, that in Sweden, the legislative body was distributed 
between four chambers. But in America it is the power which is 
distributed. And although there are sixty-two chambers, yet these 
do not act co-ordinately, but each of the thirty-one legislative bodies 



m 



214 



NATURE AND TENDENCY 



[book II. 



exercises powers which are distinct, and independent of those of the 
others. 

This disposition of the legislative power in America constitutes a 
deduction from the power which would otherwise be exercised by the 
national assembly. It erects still stronger and more numerous bars 
against the enterprizes of the legislature, and these bars are all with- 
out and not within the body. It does not merely balance power, it 
absolutely withholds it. If the whole mass of authority which is 
wielded by the national and state legislatures were delegated to one 
assembly, all the other bulwarks of freedom would be undermined. 
The political power of the community would be completely centralized. 
The minds of men would be distracted by the vast amount and the 
complex character of the business which would be transacted at a 
distance so far removed from their observation. Public affairs would 
become a great mystery, and whenever that is the case, government is 
in a fair way of acquiring inordinate power. But under the present 
admirable arrangement, public business, like all other knowledge, is 
classified and distributed, so as on the one hand to protect against 
usurpation, and on the other, to secure an orderly administration in 
every part of society. 

A republic has been defined to be a government of laws : but as 
Rousseau has well remarked, a government may be one of laws, and 
yet be exceedingly imperfect in its construction. It must be one of 
equal laws, in order to fulfill the plan of republican government. 
Society has undoubtedly secured one great advantage, when public 
affairs are conducted upon some fixed and regular scheme, and where 
general rules are laid down for the government of individuals. This 
is better than to have every thing dependent upon the arbitrary will 
and caprice of a handful of public rulers. Moreover, when this first 
Step is taken, better things are in prospect, and only wait a favorable 
opportunity to be introduced. But there may be the most orderly 
arrangement in a system of government; and yet the system may 
act very unequally upon different parts of society. The laws may 
set out with taking it for granted, that there is a radical and perma- 
nent distinction between different classes of society ; and when this is 
the case, the whole course of the subsequent legislation will be 
directed to uphold this distinction. In nearly all the European states, 
the executive is a hereditary magistrate, and the legislative body, or 



CHAP, vn.] 



OF FREE INSTITUTIONS. 



215 



one chamber at least, is composed of the nobility. That this should 
be so, is in those communities regarded as among the most settled 
principles of wise government. If the laws did not originate the sys- 
tem, they every where confirm and support it. These communities may 
be said to be governments of laws. All public business is conducted with 
great precision and regularity. But this does not prevent the system 
from bearing with immense inequality upon different parts of society. 
The influence which such a scheme of government exerts, is not 
always direct : it may operate circuitously through many subordi- 
nate chambers ; but still affecting materially the manners, and con- 
sequently the character, of the legislation. Thus in Great Britain, 
where the nobility are a small fraction of the population, when 
compared with the middle class, parliament, in no act of ordinary 
legislation, ever avows the design of making a formal distinction be- 
tween the two. But the influence and power of the former are 
upheld in a great variety of ways, by an over-grown church estab- 
lishment, by the creation of monopolies, by the structure even of the 
house of commons, which admits persons principally who belong to 
the class of gentry, and who are therefore more or less connected 
with the aristocracy proper. All this inspires a general taste for aris- 
tocratic distinctions, long after the nobility have ceased to appropriate 
to themselves one half of the power and property of the community. 
The government of France is one of laws, but the house of deputies 
only possesses one third of the legislative power, and represents only 
two hundred thousand persons, in a population of thirty-five millions. 

There is another difficulty which meets us : although the laws do 
not accord any fixed immunities to one class, there will still exist 
great inequality in the condition of the citizens. The same laws ap- 
plied to all, will operate unequally upon some. A tax proportioned 
to the income of individuals may reduce some to poverty, while it 
leaves others in affluence. The state invites all the citizens to enter 
the halls of legislation, or to fill other important posts. Accidental 
circumstances, natural infirmity of mind or body, or some other of the 
disadvantages of fortune, may prevent numbers from profiting of the 
invitation, while it will conduct others to wealth and distinction. We 
may alleviate if we cannot cure the defects of the first kind; we may 
take care that taxation shall never bear with inordinate weight upon 
the poor. But there is no way of rectifying the last species of 



216 



NATURE AND TENDENCY 



[book II. 



imperfection, if an inequality which is stamped upon all created beings 
can be called an imperfection. But government has no right to ex- 
aggerate the inequalities which actually exist among men, and to create 
distinctions which would not otherwise take place. All men are not 
born equal, but all men are born with an equal title to become so ; 
and government has no right to throw impediments in the way of 
making that title good. The high standard of popular intelligence in 
the United States is not owing to education alone. It is in great 
part ascribable to the absence of that mighty weight which presses 
upon the faculties of men, in the middle walks of life, when they live 
in a state in which aristocratic distinctions lie at the foundation of 
the government. 

The government of the United States comes as near the idea of a 
government of equal laws, as any we dare expect to see. The laws 
are made by the people, and they are consequently made for the peo- 
ple. There may be great difference in the legislation of two coun- 
tries, although the laws are the same in both. For instance : laws 
which are designed to protect property, affect but a small proportion 
of the population where property is monopolized by a few, as is the 
case in Russia and Poland, and as was the case in France before the 
revolution, when nearly three-fourths of the land was appropriated by 
the clergy and nobility. Something of the same kind may be ob- 
served in countries much more enlightened than Russia or Poland. 
For instance : the law of perpetual entail exists in Scotland and Ger- 
many ; so that in the former much more than one-third of the land is 
tied up for ever; the wholesome restraint which the English courts 
have imposed upon English estates being unknown. Scotland is un- 
der a government of laws, but those who are protected by the laws 
are a privileged class. 

This constitutes a leading distinction between the legislation of the 
United States and other countries. The Americans commenced 
where other communities will probably leave off. Property is more 
equally distributed than any where else. The laws, from the necessity 
of the case, are obliged to be more equal than any where else. But 
this lays the foundation for more important changes in their character. 
They will become more enlightened, less incumbered with subtle and 
unmeaning fictions, because they will acquire a greater degree of sim- 
plicity ; and they will have this simplicity, because, being enacted by 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



217 



the people, they will be more thoroughly adapted both to their wants 
and their comprehension. 

Thus, although America derived the elements of its jurisprudence 
from England, material changes have been made, especially during the 
last thirty or forty years. And when, in 1828, the British parliament 
entered upon the great work of reforming the civil code, the laws of 
the American states furnished the pattern after which it was obliged 
to copy. In the laws of one or other of the American states, are to 
be found almost every material improvement which has been made, 
and a still greater number which may have been advantageously in- 
serted in the new code. 

The criminal codes of the American states are stamped with the 
same distinguishing features as the civil. The two go hand in hand, 
because the subject matter of both is closely connected. The tempta- 
tions to violate the rights of property 7 are increased, in proportion as 
property is confined to a few. And thus this new result will take 
place, that in a country where nearly every one is interested in the 
acquisition and secure possession of property, the laws will be more 
humane than in those where property is distributed to a few. 

As to the mode of proposing the laws to the legislative body for its 
adoption, this has been very different in different countries, and in the 
same country, at different times. In the European states, formerly, 
the executive possessed the exclusive privilege of propounding what 
laws were proper to be enacted. The manner in which the initiatory 
step is now taken in some of those states, indicates a very great 
change in the relative authority of the two departments. The power 
of proposing the laws, when vested exclusively in the executive, gives 
him complete command over the motions of the legislature. This 
body was at one time regarded as a mere appendage to the executive. 
The last was in reality the supreme legislative tribunal. In course of 
.time, this apparently slight change took place. The legislature ad- 
dressed the king in the form of petition, as to what law they wished to 
be passed. This gave the former a more active part in their formation; 
but still fell very short of the appropriate office of a legislative assem- 
bly. The executive was still regarded as the ultimate arbiter of all 
public measures. In England, a further change took place. Bills 
were drawn up in general terms, and the judges performed the task 
of framing them into laws. But this was not done until the session 



218 



NATURE AND TENDENCY 



[book II. 



of parliament was closed ; — a strange practice, if we did not know 
that all human institutions, in their immature state, wear a strange 
and uncouth character. The judges at that period were dependent 
on the king, and the shape given to the laws was not always what was 
intended. This practice indicated very clearly, however, that some- 
thing like system and regularity was beginning to be introduced into 
the transaction of business. It was the forerunner of still more salu- 
tary changes. Accordingly, in no very long time, parliament asserted 
the exclusive right of originating and framing the laws. The legis- 
lature then began to assume the character of an independent body. 
The prerogative of the king was transformed into a negative upon the 
laws, after they had passed through the two houses, instead of being 
exercised at the first stage of the proceedings. 

A similar change has been brought about in the French govern- 
ment. The right of the king to propose the laws, which was retained 
in the "charte" of 1814, is abolished by that of 1830, and the power 
may be exercised indifferently by the king, the chamber of peers, or 
the chamber of deputies. But it is not so in the constitution of 
Holland, or Belgium, though in so many respects they are copied 
after the English model, and underwent a revolution in the same 
year that the new provision was inserted in the French constitution. 

In the United States this power of initiating the laws could at no 
period be exercised by the executive : for the legislative power, both 
in the national and state governments, is vested solely in the general 
assembly of each. The privilege which is conferred upon the presi- 
dent and governors, of suggesting such changes as they may deem 
beneficial, is of a totally different character from the power of pro- 
pounding the laws as it is understood in European language. 

There are two customs which exist in the French and English 
governments, which may be regarded as relics of the ancient pre- 
rogatives of the executive. The one is the speech made from the 
throne, at the annual meeting of the legislature; the other consists in 
the right which ministers have to seats in that body, either " de jure," 
as ministers, as in France, or by virtue of an election, as in Great 
Britain. Wherever the executive is a hereditary magistrate, the 
last is an exceedingly advantageous arrangement, because it brings 
him within reach of the legislature, and subjects him to the imme- 
diate action of public opinion. The theory of the constitution places 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



219 



him beyond it ; the practice draws him insensibly within the circle of 
its influence. But the speech which is made at the opening of the 
legislative body is a wise regulation, whether the executive is an 
hereditary, or an elective, magistrate. 

When we read the instructive and business-like communications of 
the president to congress, and of the governors to the state legisla- 
tures, the observation that they are the broken relics of a formidable 
prerogative of kingly power may appear to be new : yet such is un- 
doubtedly the case. The American custom, however, is of unmixed 
benefit to the community. Some centuries hence, another Mon- 
tesquieu, or Millar, will set about exploring American institutions, 
which will then acquire additional interest, from being covered with 
the rust of antiquity, and in poring over the history of the country, 
will fasten upon very many things as worthy of deep attention and 
study, which, in consequence of their familiarity, elude the observa- 
tion of Americans at the present day. Existing institutions are often 
more difficult to decipher and thoroughly understand, than those of a 
remote age. They are mixed up with so much which is apparently 
familiar, and with so much which is really extraneous, that it demands 
a severe and comprehensive analysis, to disentangle the last, and to 
give to the former their just place. But when institutions grow old, 
things which were once familiar become striking facts, and whatever 
was extraneous has dropped off and fallen into oblivion ; so that time 
operates the same analysis with regard to an ancient system of gov- 
ernment, which it requires the utmost thought and reflection to effect 
in relation to an existing one. 

The custom of sending to the legislature a communication, contain- 
ing a clear account of the state of public affairs, not only maintains 
friendly relations between the two departments : it tests the capacity 
of the chief magistrate, and makes it his ambition to obtain exact 
information of every thing which affects the condition and future 
prospects of the community over which he presides. The more the 
minds of public men are turned in this direction, the less the danger 
of their meditating schemes unfavorable to the general weal. And 
doubtless one reason why America has enjoyed such unexampled 
tranquillity, is that the administration of public affairs has assumed 
a thoroughly business-like character. Men of the finest understanding 
have been repeatedly governors of the states : Jefferson, and M'Kean, 



I 

220 NATURE AND TENDENCY [book ii. 

G-riswold, and Clinton, M'Duffie, and Everett, without mentioning 
many others who belong to the same class. If these men had been 
nurtured under a Spanish, or Portuguese government, or in an Italian 
republic, their minds would have been subjected to a discipline the 
most unfavorable imaginable, and their public conduct would have 
taken a totally different direction. When in reading American history, 
one comes across such a character as Aaron Burr, it seems as if we 
had encountered a being who properly belonged to another sphere. 
He also possessed faculties of a high order, but he stands alone in 
one respect : he appears never to have realized, what all other Ameri- 
cans find it impossible to forget, that he was born and educated in a 
country of free institutions. He seems to be a man of Yenice, or 
Genoa, rather than one of New York. 

The communities in which the executive messages are most full 
and comprehensive, are the very ones which possess most liberty, so 
much has the custom deviated from the institution out of which it 
sprung. In monarchical states, where we might expect the executive 
to dictate minutely what should be done, he says little or nothing. 
And in a republic, where from his authority being exceedingly limited, 
we might expect him to say very little, he traverses the whole field of 
inquiry, and appears to feel as deep an interest as if the state were 
his property, and the people his subjects. Nothing can be more 
jejune than a king's message, while few documents are more instructive 
and satisfactory, than the messages of the American president, and 
governors. The king fears to show himself upon an arena where he 
would find so many private citizens his superiors. A few words are 
sometimes understood to be a sign of wisdom, and with kings it 
becomes an universal maxim that they are so. 

The establishment of a written constitution necessarily introduces 
a great change in the character and functions of the legislative body. 
The effect is to create a division of the legislative power between the 
people and the ordinary legislative assembly: another contrivance 
much more efficacious than the distribution of the last into two cham- 
bers. The people exercise their share of authority when assembled 
in convention ; they ordain fundamental rules for the government of 
all the departments ; or when collected at the polls, they ratify or 
reject proposed alterations in the existing constitution. Sometimes 
a constitutional charter adds to the powers of the legislative body, 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



221 



but in the great majority of instances, it diminishes them. In the 
former case, it would perhaps be correct to say, that there was a dis- 
placement, or new arrangement, of the powers of the ordinary legisla- 
tive body. Thus, in a republic, the authority to declare war is 
delegated to this assembly, but it has been taken from the executive. 
The same amount of legislative power as before may be delegated, 
but a very important part is wrested from one department, in order 
to be deposited with another. 

But it is more important at present to notice those powers which 
are entirely withdrawn from the legislative assembly, and retained by 
the people. The freedom of religion and of the press, the organization 
of the political departments, trial by jury, the qualifications of elec- 
tors, and of candidates for office, are a few of them. The legislature 
can no longer intermeddle with these matters, though the people in 
convention may make what disposition they please in regard to them. 
The noblest efforts have been made in France to introduce constitu- 
tional liberty. But the liberties of no people can rest upon a solid 
foundation, unless the constitution is the work of their own hands. 
The revolution of 1830 was occasioned by the daring interference of 
the king with the freedom of the press, and the law of elections : 
matters which should be carefully locked up by the constitution. The 
most exciting controversies, those which have caused nearly all the 
insurrections which have taken place, are precisely those which a 
popular constitution withdraws from the cognizance of a legislative 
assembly. A constitutional ordinance severs, if I may so say, the 
conventional from the legislative power. It marks out a limited 
field for the exercise of the last. The temptation and the ability to 
usurp power are not absolutely diminished, but they are greatly 
repressed. 

There is another division of the laws, into those which relate to the 
manners, and those which have a direct reference to the rights of per- 
sons and property. In the first rudiments of society, a code of 
jurisprudence is very apt to touch extensively upon manners. The 
community then bears a strong resemblance to the family, and the 
government to the government of a family. The progress of society 
produces the same change in the laws, which a knowledge of the 
world produces in the character of individuals. It enlarges the field 
of observation and inquiry, and places in an insignificant light many 



222 



NATURE AND TENDENCY 



[book II. 



actions to which the utmost importance was attached. All laws are 
the result of a process of generalization. But when the community 
has grown from a city, or an inconsiderable territory, to an extensive 
and populous state, it becomes impossible to regulate private manners 
minutely, and yet to preserve the system of generalization. The 
codes of some of the Germanic tribes, the Franks, and the Burgundians, 
interfered extensively with the manners. The blue laws of Connecti- 
cut are also a remarkable example of the same species of legislation, 
though it is a great mistake to suppose that laws of that character were 
confined to that province. Similar regulations, only not so numerous, 
nor carried to so great an extent, were adopted in others. They were 
not even confined to the northern provinces, but were in force in some 
of the southern also. 

Sumptuary laws were very common among the ancient common- 
wealths. They even lay at the foundation of the government of 
Sparta. But Sparta was smaller than a moderate sized American 
county, and this system of legislation gradually gave way, after inter- 
course with the other Grecian states had produced a higher civiliza- 
tion, and given rise to more liberal modes of thinking. 

The Appian law enacted at Borne was one of the most remarkable 
of this class of laws. It imposed severe restrictions upon the dress of 
females, forbade ornamental apparel; and the legislature, which con- 
vened for the purpose of deliberating whether it should be continued 
in force, drew around the Boman forum a mob of women, as formidable 
as the band of men which in 1780 collected under the banner of 
Lord George Gordon, to intimidate the British parliament. The city 
of Borne, however, was the real Boman commonwealth; the Italian 
provinces occupied the place of dependences, rather than that of 
integral parts of one state. 

But the list of such laws after all was not very extensive. It 
would have been an endless task to legislate for the manners and morals 
of the people. As positive regulations could not reach them, the 
matter was left to the discretion of the censor. But what the laws 
have not power to do, it is plain no individual will attempt, and this 
part of the duty of the censor was not very strictly performed. 

It is sometimes difficult to draw a distinct line between the two 
classes of actions to which I have referred. Life, liberty, and pro- 
perty, are the subjects which the laws principally deal with. Yet in 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



223 



some highly civilized countries, duelling has not always been punished ; 
the reason of which is, that the manners have been too strong for the 
laws. In some countries men fight in obedience to the manners ; in 
others, they abstain from fighting, also in obedience to the manners. 
As the punishment of death has no terror for the man, who in order 
to escape death, seizes the last plank in a shipwreck from a weaker 
man, so it has no terror for the man who persuades himself that even 
an imaginary disgrace is more intolerable than death. But duelling 
is a relic of aristocratic institutions. It follows, therefore, that in 
proportion as the principle of equality gains ground, and becomes 
thoroughly incorporated with the fashion of thinking, the custom will 
disappear. The manners are then made to correct the manners. 
Equality has a wonderful influence in laughing out of countenance all 
fanciful notions. It is absurd to expose our own lives, when a griev- 
ous injury has been done to us. It is worse than absurd, when we 
have only been affronted. I observe that in the south-eastern states, 
where the principle of equality has gained ground so fast, and where 
in consequence the minds of men have been driven to reflection, the 
custom is falling into disrepute. 

Some governments permit theatrical entertainments, while others 
prohibit them altogether The legislature of Connecticut has resisted 
every effort to introduce them. Although these exhibitions, in some 
respects, afford an innocent and even noble recreation, yet the sum of 
their influence is deemed as pernicious as any of those actions which 
immediately affect the persons or reputation of others. New Haven 
is as large as New York was in 1776, when the latter had a regular 
theatrical corps. But if it were as large as New York now is, or as 
large as Boston, it may be doubted whether the legislature would be 
enabled to persevere in its excellent intentions. The creation of do- 
mestic governments in the United States has this advantage: it 
enables particular sections of the country to adapt the laws to the 
manners, instead of being involved in the consequences of one gene- 
ral and sweeping system of legislation. 

If the inquiry should still be pressed : why do legislators, for the 
most part, confine their attention to those actions which immediately 
affect life, liberty, and property, and leave untouched a very large 
class of others, which have a very important, although it may be 
an indirect, bearing upon the public happiness? the following 



224 



NATURE AND TENDENCY 



[book II. 



observation's may be made, in addition to those which have been 
already suggested : 

If there were no laws, actions which are now visited with a penalty 
would not go unpunished. The great benefit arising from a regular 
code of laws, and a corresponding system of procedure, consists in the 
restraint which these impose upon private revenge. For this would 
then pass all bounds, and punish too much. The influence of the 
laws is such, that it substitutes reflection in the place of passion. 
And with regard to those actions which affect others indirectly, but 
do not assume any tangible shape, although the laws do abstain 
from punishing them, yet they are most certainly punished. But in- 
asmuch as the punishment is applied to a different class of actions, it 
assumes a different character. Acts of violence were before followed 
with violence ; and vices in the manners are followed by a counter- 
vailing influence of the manners. Hatred, envy, and ingratitude, are 
exceedingly prejudicial to public as well as to private happiness ; and 
they are visited in private life with a penalty as certain as that which 
the law inflicts upon delinquencies of a graver kind. The state un- 
dertakes to punish these, because individuals would exceed all bounds, 
if punishment were left to them. And it abstains from noticing the 
former, because it could neither punish so generally, nor so judi- 
ciously, as when the punishment is left to the silent, but searching, 
operation of opinion. Murder and robbery are very far from being 
driven from society by the severest laws, but they are rendered much 
less frequent than they would otherwise be. So, although the worst 
passions still infest society, yet without the punishment which now 
constantly attends them, the most civilized community would be turned 
into a pandemonium. 

I cannot leave this subject without noticing a species of legislation 
which has lately made its appearance in some of the American states, 
and which has in a remarkable manner arrested public attention, 
both at home and abroad. I allude to the license laws ; laws which 
are intended, if possible, to extirpate the use of intoxicating liquors. 
These seem to partake of the character of sumptuary regulations, 
and therefore to be an interference with subjects which are properly 
withdrawn from the care of the civil magistrate. But I hold that 
they constitute an exception to the rule. 

It was not until public attention was particularly drawn to this 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



225 



matter, that any one was aware to how great an extent the commis- 
sion of crimes was to be traced to the use of spiritous liquors. 
Still less did persons of even considerable reflection form any concep- 
tion of the influence which the practice of moderate drinking, as it is 
termed, has in confusing the judgment, blunting the moral sense, and 
souring the temper. But it is evident, that a vast portion of miscon- 
duct, want of judgment, feeble, irresolute, and contradictory actions, 
which were supposed to be unaccountable, and were not regarded as 
of great importance, are attributable to this cause, and have shed a 
most baneful influence upon society. This is a matter, therefore, 
which, even if it wholly concerned the manners, has an importance 
which belongs to no other of a similar class. And the efforts which 
have been made by the people of New England, Tennessee, and New 
York, are symptoms of an exceedingly sound state of public opinion. 
It is because the people have themselves taken this matter into con- 
sideration, that it possesses so much importance. In some countries, 
legislation by the people suggests the notion of licentiousness, of a 
predatory spirit. Here, is a remarkable example, the most remark- 
able I am aware of, to the contrary. Without the co-operation of 
the people, it would be a herculean task to lift the popular mind; 
but with their co-operation every thing good and useful may be ac- 
complished. If the laws which have been passed in some of these 
states should remain unrepealed, they will be a lasting monument of 
the wisdom and virtue of the people. I am inclined to think that they 
will constitute the most memorable example of legislation of which 
we have any record, not so much in consequence of their widely salu- 
tary influence, as because they argue a degree of self denial and 
reflection, which no one before supposed to belong to the masses. 
Let no European after this indulge in the fanciful notion, that the 
people are incapable of self government. As a single act, it is the 
most marked proof of a capacity for self government of which I have 
any knowledge. 

Nor would it materially weaken the force of the reasoning, if these 
laws were repealed. That they have been proposed by the popular 
mind, that they have enlisted a powerful and numerous class in their 
favor, is decisive of the soundness of public opinion. If two millions 
and a half of people hold opinions which are eminently favorable to 
morality and good government, and three millions hold opposite ones, 



226 



NATURE AND TENDENCY 



[book II. 



the influence of the first will be felt beyond all comparison, before 
that of the last. And if a fraction only of the three millions enter- 
tain different opinions, the majority agreeing with the two millions 
and a half, and only hesitating as to the expediency of positive legis- 
lation, we make sure of one of two things, that such laws will be 
passed at some future day, or the public opinion will be so searching 
and so powerful in its operation, that they will be unnecessary. 

There are a multitude of subjects on which the legislative power 
may be exercised, which it would be unprofitable to recount in detail. 
Some of these will be more particularly noticed under distinct heads. 
The important modification which this department undergoes, in con- 
sequence of the existence of a written constitution, the abolition of a 
chamber of nobility, and the distribution of the power between a 
national and local legislatures, are things which it is of most conse- 
quence to keep in view. When the operation and influence of these 
are fairly grasped, it will be easy to understand the character and 
functions of the legislature in a country of free institutions, whether 
the form of government is that of a simple, or a confederate, republic. 

For instance : what a variety of subjects are withdrawn from the 
national legislature in America, in consequence of the existence of the 
state governments. This plan is attended with two important ad- 
vantages. It alters the whole character of legislation. The domestic 
affairs of the population, which outweigh in number and importance 
all others, become the subject of chief importance, while at the same 
time more judgment and skill are devoted to those interests than 
could be the case, if they were all superintended by a central govern- 
ment. In the second place, the immense deduction which is made 
from the power of the national legislature, prevents its being brought 
in perpetual collision with popular rights. As the whole amount of 
public business, which is transacted in- a country of free institutions, 
is incomparably greater than in any other, the danger of introducing 
a complete system of centralization would also be greater, if the legis- 
lative authority were not distributed among two classes of government. 

At one time it was believed in America, that the power to make 
internal improvements, not merely military and post roads, but every 
other kind of roads and canals, might well be exercised by congress. 
The power was regarded as a sort of paternal authority which would 
be engaged in dispensing benefits to the whole population, and from 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



227 



which therefore no political evil need be apprehended. But reflecting 
and clear-sighted statesmen thought they could discern, behind this 
paternal authority, the germ of a power which, if it were permitted to 
take root arid spread, would give rise to a system of centralization 
which would fritter away the authority of the states, and therefore 
be detrimental to popular freedom. They therefore opposed the 
exercise of the power, even where the state consented; and very 
consistently, for consent cannot give jurisdiction. A state cannot 
surrender a power to the federal government which the constitution 
has withheld. To do so would be to disarrange the whole system, 
and to alter the balance between the national and state governments. 
The school whence those opinions emanated was at one time deri- 
sively termed the Virginia school of politics ; but with great injustice, 
for these opinions have been productive of unspeakable blessings to 
the American people. It should rather be denominated the American 
school of politics, as it is a genuine representation of the mode of 
thinking, which should be familiar to every one in a country of free 
institutions. All experience shows that there is more danger from a 
too lax, than from a too strict, construction of the constitution. 

Every one may have read the interesting and graphic description 
of the solemn mission which was deputed by New York to Washing- 
ton city, for the purpose of engaging the general government to 
embark in those public improvements which the state has itself exe- 
cuted in much less time, and with so much more skill and judgment, 
than if they had been left to a central government. The state dis- 
trusted its own ability to construct these works. This was one 
motive. Another probably was, that it would avoid the responsibility 
of laying the taxes necessary to defray the expense. But the mission 
to Washington met with an insurmountable obstacle. The federal 
government at that time was administered under the auspices of that 
Virginia school of politics to which I have referred : and for the first 
time in the history of nations, a government was found which openly 
avowed that it was unwilling to augment its own power. Fortunate 
result, in every aspect in which it can be viewed. The states have 
escaped a system of centralization, which would inevitably have 
impaired their just authority; and the great state, which first pro- 
jected the plan of internal improvements on a broad scale, has 
succeeded beyond all expectation, in the execution of its gigantic 



228 



NATURE AND TENDENCY 



[book a. 



works. The series of years of unparalleled activity in every depart- 
ment of industry which followed, has gradually enlisted every other 
state in the same scheme ; and difficulties, which seemed too great 
for the resources of any single state, have been easily overcome 
by all. 

This is one among many instances, of the advantages resulting 
from a division of the legislative power, between a national and local 
legislatures. 

A striking example of the effect which a popular constitution has 
in altering the character of the legislation, is afforded by the disposi- 
tion which has been made of the war-making power in the American 
government. It has been taken from the executive, and confided to 
the legislature alone. It is true that this arrangement may be 
adopted in a government where such a constitution is unknown. In 
Sweden, at one time, the states or diet had the exclusive power of 
declaring war. And at present they possess a veto upon the resolu- 
tion of the king. But a popular constitution makes sure of abridging 
the power of the executive, and what is of still more consequence, it 
provides for the creation of a legislative body, which shall really, not 
nominally, represent the public will. The legislative power is the 
power to make laws, and the law which gives rise to a state of war is 
one of the most important which can be enacted. War was formerly 
made without any solemn declaration, and on this account, perhaps, 
the power was supposed to fall within the appropriate sphere of 
executive jurisdiction. Devolving the power upon representatives of 
the people is a step taken in favor of civilization, not merely in one 
nation, but among all nations. The power will be used with infinitely 
more caution. " War," says Mr. Burke, " never left a nation where 
it found it." It not only alters the relations between the belligerents; 
it produces the most serious changes in the internal condition of 
each. It annuls "ipso facto" some of the laws which were before of 
force ; it renders necessary the passage of new ones, affecting immedi- 
ately the pursuits of private individuals, and very frequently entails 
the heaviest calamities upon all classes of society. The law of war, 
therefore, has been attributed to the executive, in consequence of that 
confusion between the functions of the different departments which 
always takes place in the early history of governments, and which, 
once established, it is so difficult to remove. 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



229 



It is true that in Great Britain and France the supplies are voted 
by the legislature, and the bill must originate in the chamber in 
which the deputies of the people sit. But this sometimes is a very 
inadequate security against the prosecution of wars of ambition. The 
structure of the government must conspire with the social organization 
to throw discredit upon such wars, and to put them entirely out of 
fashion. If the manners exercise a powerful influence upon govern- 
ment, so also does government exert a like influence upon the 
manners. A hereditary monarch and an order of nobility, necessarily 
possess an amount of influence which cannot be measured by the 
mere formal authority with which they are invested. This influence 
too generally begets tastes and habits incompatible with the mainte- 
nance of peace, as the permanent policy of the country. These will 
extend more or less over every part of society, and give tone to the 
deliberations of the popular branch. Although, therefore, the two 
states I have named, as well as Belgium and Holland, are better pro- 
tected than other European communities against unjust and impolitic 
wars, in consequence of the steady and vigorous growth of a middle 
class, the protection is very far from being complete. The crown and 
aristocracy still wield a disproportioned influence, and overshadow 
the deliberations of the more popular body, by contributing to prevent 
it from containing a genuine representation of that middle class. The 
only wise plan, therefore, is to confide the war-making power to the 
legislature, and to compose this body of representatives of the people. 
If this disposition of the power will not prevent republics from 
waging unjust wars, it will at any rate render such wars much less 
frequent. 

In those governments where the popular representation is very 
slender, the right of petition is regarded by the people as one of the 
dearest they possess. In those where there is no popular branch of 
the legislature, it is the only means by which the people can cause 
themselves to be heard. In the democratic republic of the United 
States, this right has not the same use. The people have no need to 
petition a body which is created by themselves, and reflects their own 
opinions. Nevertheless, it is there considered more sacred, and is 
more extensively employed than in all other governments put together. 
And I am persuaded, that its importance is increased, instead of being 
diminished, in proportion as the institutions assume a popular character. 



230 



NATURE AND TENDENCY 



[book II. 



In absolute monarchies, such as Turkey and Russia, the right 
is almost entirely confined to the redress of individual grievances. 
An obscure individual is permitted to carry his complaint to the foot 
of the throne, for this does not at all affect the solidly-established 
authority of the monarch. It only places that authority in bolder re- 
lief. But in a republic the right acquires a far more comprehensive 
character : it becomes an affair of large masses of men, who desire, in 
an authoritative but peaceable manner, to impress their opinions upon 
the governing authority. The opinions of an individual may sometimes 
be treated lightly; the opinions of whole classes are always entitled 
to notice. They are often indications of the propriety of some change 
in the legislation, for which the majority will not be prepared until 
public opinion has been thoroughly sounded; or they may denote 
some new movement in society which, whether for good or for evil, 
should have the fullest publicity, in order to be appreciated at its real 
worth. The great current of thought, which is constantly bearing 
the mind forward, is quickened, or interrupted, by a great number of 
lesser currents, whose depth and velocity must be measured, in order 
that we may determine our reckoning. 

Petitions in the United States are of various kinds. Sometimes 
they contain the private claim of an individual upon the government. 
Sometimes they relate to the interests of agriculture, manufactures, 
and commerce. And in a few instances, they have been made to bear 
upon the political institutions themselves. The memorials accompany- 
ing the second class of petitions have often displayed consummate re- 
search and ability, and have shed a flood of light upon the subjects 
they have handled. It would be endless to refer to all the instances in 
which these compositions have sustained this high character. Two 
may be mentioned as samples : the memorial of the chamber of com- 
merce of Baltimore, on " the rule of 1756," and the report accompa- 
nying the memorial of the merchants of Boston, in relation to the 
tariff ; the first from the pen of William Pinckney, the second from 
that of Henry Lee. These papers are profound and elaborate dis- 
quisitions upon subjects which have greatly perplexed both American 
and European statesman. 

As the legislature is immediately responsible to the people, it is of 
the utmost consequence that every channel of communication should 
be opened between the two. In this way, public opinion will exert a 



CHAP. VII.] 



OF FREE INSTITUTIONS 



231 



steady and salutary control upon public men; and public men will en- 
deavor to make themselves worthy of the trust confided to them, by 
the display of eminent ability, and the acquisition of information re- 
lative to the condition and interests of their state and country. In 
absolute government, the right of petition is an affair of individuals 
only; in a democratic republic, it is one means by which the govern- 
ment and the people are more closely bound together, and the 
responsility of the representative rendered more strict. The views 
and opinions which prevail in different parts of an extensive com- 
munity, are necessarily very .various ; and the true way to reduce 
them to any thing like uniformity, is to give free vent to the opinions of 
all. Notwithstanding the exceeding diversity in the modes of thinking 
of individuals, we may lay it down as a safe general maxim, that they 
are all in search of one thing, truth : and the mutual action of mind 
upon mind, although it at first increases the sharp points in each one's 
character, ultimately brings all to a better agreement. It is one 
distinguishing feature of American institutions, that the robust frame 
of the government permits it to wait the slow process through 
which, opinions pass, without being at all incommoded ; whereas, most 
other governments too easily persuade themselves, that an opinion is 
noxious because it is new, and strive therefore, by force, or by influ- 
ence, to stifle it in its birth. 

As to the stated meeting of the legislative body, I am of opinion 
that as a general rule it should be annual. In seven of the American 
states, the session is biennial; but an annual meeting, accompanied 
with a limitation of the time during which it should sit, would be 
preferable; The indirect advantages which accrue from a political 
institution, are sometimes as important as the immediate end which is 
intended to be accomplished. Thus the appropriate oflice of a legis- 
lative assembly is to pass laws for the government of the community ; 
but there are certain incidental benefits, growing out of the meeting 
of the body, which are of inestimable value. We stand in need of 
every help and device, by which to promote the intellectual communi- 
cation of different parts of the country or state. As is the general 
standard of intelligence, so will be the character of the assembly 
which emanates from the people. To frame enlightened laws, expe- 
rience, judgment, and information are all necessary. It is the neces- 
sity of exercising the understanding about the material interests of 



232 



NATURE AND TENDENCY 



[book II. 



tbis world, which raises men so much above the condition of the 
brutes. I would therefore employ every means in my power to 
advance the standard of popular intelligence. The capital where the 
legislature sits constitutes the center of information of the whole 
state. It may be a very imperfect contrivance, after all, for collecting 
the scattered rays of thought from abroad. The assembly may con- 
tain a great deal of ignorance, and a great deal of presumptuousness, but 
it very often contains a considerable amount of sterling ability and 
good sense. I think it will not be doubted, that if congress had 
been the sole legislative body in America, civilization, and intellectual 
improvement of every kind, would not have made any thing like the 
progress which they have during the last sixty years; so true is it, 
that an institution, which was originally designed to perform one office, 
often succeeds in performing many others equally important. 

The capital is the focus of general information. It is the place 
where the most important courts sit. Great numbers are attracted 
there from various motives. But I observe that the men who can 
impart knowledge, who can stir the faculties of other men, invariably 
command most attention in the private assemblages which take place 
there. Individuals of very superior minds, and who think they feel 
a sufficiently powerful stimulus from within to the attainment of 
mental distinction, may underrate the benefits which indirectly flow 
from the assembling of thirty legislative bodies. They are not aware 
of the influences which have given their own minds a firm ground to 
stand upon, and a wide field for observation and inquiry. They are 
still more insensible to the advantages which the general mind receives 
in this way. Yet, it is most certain, that the high standard of popu- 
lar intelligence in the United States is in great part attributable to 
the annual meeting of the legislative assemblies. 

In those states where the legislature sits biennially, there are doubt- 
less some good reasons for the arrangement. The business to be 
transacted may be so small as not to require annual meetings, or the 
state may be burdened with debt, and may nobly resolve to adopt 
every practicable plan of retrenchment, rather than be unfaithful to 
its engagements. 

As to the basis of representation, ttat is, the principle on which 
the legislative body should be elected, the rule in America differs 
greatly in different states. But notwithstanding this variety, it may 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



233 



be affirmed, that the United States have made a much nearer approach 
to a regular plan than is observable in any other country. In Great 
Britain, the apportionment of representatives has always been arbi- 
trary. It is less so now, than before the act of 1832. There are 
not so many flagrant discrepancies as formerly, not so many popular 
cities unrepresented, nor so great a number of unpeopled boroughs. 
But there are immense inequalities notwithstanding. Not only is a 
majority of the house of commons elected by a part only of the sub- 
stantial population, but it is elected by a minority of the legal 
electors. In France, the rule is attended with more regularity. The 
chamber of deputies is composed of four hundred and fifty-nine mem- 
bers, who are elected by so many electoral colleges. These colleges 
are nothing more than assemblages of the qualified electors, for the 
purpose of making the choice. They bear that name, instead of the 
simpler one of the polls, so well understood in England and the 
United States, because the election is not conducted in public, but 
has much the character of a secret meeting. 

The number of " arrondissements" or territorial divisions next in size 
to those of the departments, is four hundred and fifty-nine, also. The 
colleges are composed of the voters in each of these, so^ that each 
"arrondissement" sends one member to the chamber of deputies. There 
is great inequality in the population of these territorial divisions. But 
notwithstanding this, there is less inequality in the apportionment of 
representatives than in Great Britain. The principal difference be- 
tween the two countries, as regards the composition of the popular 
chamber, consists in this : in France, the basis of representation is less 
arbitrary ; but in Great Britain, the number of persons who possess 
the electoral franchise is much greater in proportion to the whole 
population, than it is in France ; so that the house of commons is a 
more popular body than the house of deputies. The population of 
Great Britain and Ireland is not as large as that of France by five 
or six millions; but the electors are four times more numerous in the 
former. In order to found a popular body, both principles should be 
combined. The apportionment of the representation should be as 
equal as is practicable, and there should be a liberal rule for the ex- 
ercise of the right of suffrage. 

Representation may be proportioned to the gross amount of the 



234 



NATURE AND TENDENCY 



[book II. 



population, to the number of electors, to the number of taxable inhab- 
itants, or the basis may be a compound one, of taxation and popula- 
tion ; for these various rules have all been followed in the different 
American states. In addition to which there is a fifth plan, which 
has been adopted in the federal government and in a few of the 
southern states. The representation in Congress, and in the lower 
houses of Maryland, North Carolina, and Georgia, is determined by 
adding to the whole number of free persons, three-fifths of the slaves. 
In the composition of the federal senate the rule, as I have already 
remarked, is necessarily different from all these. But so far as re- 
gards the state governments, the same reason does not exist for 
making the rules of apportionment different in the one house from 
what it is in the other. Yet there is considerable diversity in this 
respect. For instance : in Massachusetts, New Hampshire, and 
North Carolina, representation in the senate is based upon taxation ; 
while in the lower house it is in the two former based upon the num- 
ber of electors. In Rhode Island, South Carolina, and Georgia, 
senators are distributed by a fixed rule among different districts, 
without making allowance for a variation in the population or taxa- 
tion ; while in the second, representatives are according to a mixed 
ratio of taxation and population ; and in the first, in proportion to the 
population, with this exception however, that each town or city shall 
always be entitled to one member at least. In one respect, the rule 
in Connecticut and Virginia is different from what it is in the other 
states. The representation in both houses proceeds upon an arbi- 
trary, or at least conjectural, rule. In the former, the senate is com- 
posed of twelve members, chosen by general district, and the number 
of representatives from each town is declared to be the same as it was 
prior to the formation of the constitution, with this exception, that a 
town afterward incorporated shall be entitled to one representative 
only. In Virginia, so many senators and representatives are distribu- 
ted among different sections of the state, without any power in the 
legislature to alter the apportionment. In a majority of the states, 
the composition of the two houses is the same, being based in both 
either upon the gross amount of the population, or the number of the 
electors. 

But notwithstanding the great variety of plans which are adopted 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



235 



in the several states, the basis of representation, either for the senate 
or the house, is in every one of them far more equitable than it is in 
any other country. 

The plan which appears to be most conformable to the genius of 
free institutions, is to make population the basis of representation. 
1st. The most populous will, as a general rule, be the most wealthy 
I jiistricts also. 2d. Where this is not the case, a representation of 
I (property interferes with the great principle of equality, as much as if 
we were to give to some men a quarter or half a vote, and to others 
■ a whole vote. If of two districts containing an equal population, 
[one sends a single member, and the other, in consequence of its supe- 
rior wealth, sends two members ; the men of the last have what is 
(equivalent to two votes, when compared with the first. 

But the existence of slavery raises up a new rule in the southern 
[States of America, and one which contributes greatly to complicate 
I (the question. The most wealthy will never be the most populous 
I [districts, where slaves are not counted as persons. If they are counted 
(j as property, there is nothing to correspond with them as persons. In 
& other words, the very thing which is regarded as property is itself 
■population. Shall these half persons, half things, form the basis of 
■representation for freemen, although they have no representation 
•themselves ? It must be recollected, however, that tlnYspecies of in- 
ijequality will exist to some extent wherever the gross amount of the 
i (population affords the rule, whether that population is wholly free, or 
(in part composed of freemen and in part of slaves. There is no way 
of avoiding it altogether, but by making the number of electors the 
basis of representation. There are only five states, however, in which 
jlthis rule is adopted. But the number of electors and the number of 
the people are of course very different. The former are male adults 
only; the latter include both sexes and all ages. Is there, then, 
j more injustice in a representation of slaves than in one of infants? 
It may be said, that whether we make the electors or the whole free 
(population the basis, the distribution of representatives will be the 
same for all parts of the country; that is, that the electors are every 
(where in the same proportion to the population. It is not the less 
(true, however, that some persons are made the basis of representation, 
I who are not themselves entitled to vote. Now the thing which forbids 
! their voting, to wit, want of capacity, is the very thing which has 



236 



NATURE AND TENDENCY 



[BOOK II. 



induced all wise legislators to interdict the right to slaves. Moreover, 
the proportion of adult males to the whole population may not be the 
same in all the non-slaveholding states. This proportion is different 
in an old, from what it is in a new, country. And it is, for the same 
reason, different in one of the new and growing states of the American 
confederacy from what it is in one of the older ones; — different in 
Indiana and Illinois from what it is in Massachusetts and Connecticut. 
And when we consider that it is not the whole number of slaves, but 
three-fifths, which ever enter as an element into the basis of represen- 
tation, the rule adopted by the federal government and three of the 
states has neither the character of novelty, or of harshness. The 
same remarks may be made in reference to the plan of basing repre- 
sentation in one house upon taxation, to that of basing it generally 
upon the number of taxable inhabitants, and to that of assigning one 
senator to each town in the state. The first is the case in • New 
Hampshire, the second in Pennsylvania, and the third in Rhode 
Island. Neither the amount of taxation, nor the number of taxable 
inhabitants, correspond with the number of the electors. Minors and 
females will frequently be subject to taxation. And the Rhode Island 
as well as the Virginia plan designedly rejects both the rules of popu- 
lation, and that of the number of electors. 

But I am of opinion, that the rule of federal numbers will ulti- 
mately be abolished in the three states I have named, although prob- 
ably never in the federal government. I observe that in all the new 
states which have been formed to the south, the ratio of federal num- 
bers has been rejected. This is the case even in Louisiana, the only 
state except one where the slaves outnumber the whites. As the old 
states have exercised a great and salutary influence upon the new, the 
new will probably, in their turn, exercise a like influence upon the old. 
Their experience will be a sort of double experience ; that which their 
ancestors who emigrated from the older states handed down to them, 
and that which they themselves have acquired. 

But there is a stronger reason. The tendency every where mani- 
fest, to incorporate thoroughly the principle of equality into the 
political institutions, will operate to produce this effect. The demo- 
cratic principle will not lead to the emancipation of the blacks, for 
this would be to place the most democratic part of society in imme- 
diate association with them. But it will lead to the abolition of a 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



237 



representation of slaves, in the state governments, since that places 
different parts of the white population on an unequal footing. 

The English government, says De Lalme, will be no more when 
the representatives of the people begin to share in the executive 
authority. But when we consider how the executive authority in 
that government is constituted; that the king possesses numerous 
attributes which properly belong to the legislature, and that without 
any direct responsibility to the people; it would be much more correct 
to say, that the constitution will always be in jeopardy, unless the 
representatives of the people succeed in appropriating to themselves 
some of his vast prerogatives. The tendency of the legislature to 
become the predominant power in the state is visible in all the consti- 
tutional governments of the present day. But far from rousing 
apprehension, it is an unequivocal symptom of the progress of regular 
government. This tendency in Great Britain is more marked at the 
present time than when De Lalme wrote : it was much more so in his 
day than during the reigns of the Stuarts, or during those of William, 
or Anne. The same changes have occurred in France. No monarch 
now dare go to the legislative hall to pronounce, as Louis XV did, 
the dissolution of the only body which served as a counterpoise to the 
throne. The whole kingdom quaked and was petrified by that memo- 
rable discourse, because the body to whom it was delivered had not 
been lifted up by the people, and was therefore unable to assert the 
rights of the people. The changes which have taken place, both in 
Great Britain, and France, so far from endangering the executive 
authority, have given it strength; so far from filling those countries 
with confusion, have promoted public tranquillity. 

The preponderance of the legislative over the executive department, 
is the natural consequence of the system of representation. In a 
highly civilized community, in which this system is sure to make its 
appearance in one form or another, a larger amount of legitimate 
business falls to the legislature than to the executive ; and that depart- 
ment which transacts the greatest amount of effective business for 
society, is sure to acquire the largest share of authority. We must 
quarrel with the principles of representation therefore, or admit that 
when the people have risen in importance, kings must part with very 
many of the prerogatives which have been attributed to them. 

But if the legislature is destined to become the most influential 



238 



NATURE AND TENDENCY 



[book II. 



body in the state, will not the balance of every constitution be over- 
thrown? The balance of no constitution is upheld at all times by 
precisely the same means. On the contrary, an adjustment, which 
may have been skillful and judicious at one period, may afterward 
become very faulty, because illy adapted to the structure of society. 
If this has undergone material changes, it is most likely that the 
machinery by which we propose to maintain the constitutional balance 
will undergo a corresponding change. If at the present day the only 
way by which an equilibrium of authority in the British government 
is preserved, be by denying in practice powers which are theoretically 
ascribed to the king, it is plain that the day is not very distant when 
the theory of the constitution will be brought into a much nearer 
conformity with the practice. For the disguised and silent transfer- 
ence of power from the executive to the legislature is, in a highly 
advanced society, the certain forerunner of a formal and legalized 
appropriation of it by the latter. 

In a representative government, the legislature gains strength, 
while the powers of the executive either fall into disuse, or are dis- 
tributed among a great number of administrative officers. But the 
responsibility of the legislature to the whole community is also in- 
creased. We cannot then adopt the opinion of De Lalme, but should 
rather insist upon it as an undeniable truth, that when all efforts to 
diminish the power of the king have become unavailing, the British 
constitution will be no more. Every scheme for widening the basis 
of representation, is a step in disguise toward lessening the regal 
authority. The reform act of 1832 strengthened the legislature, and 
saved the constitution ; and other reform acts will certainly be passed 
which will humble the powerful, but add strength and security to the 
government. 

The preponderance of the legislative power, is the striking fact 
in the history of the American governments, both national and state. 
No communities, to say the least, have been better governed. And it is 
but the other day, that one of the greatest English statesman declared, 
that "there was no reason why this system should not endure for 
ages." It is true, all human institutions are after all very imperfect. 
All fall infinitely short, not only of what is conceivable, but very far 
short of what is practicable. Let us cherish what we have, as the 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



239 



only means of extending the limits of the practicable. Some future 
generation may be able to do, what now seems impossible : to resolve 
the great problem of the social, as the present have resolved 
that of the political, equality of men. All that is necessary to this 
end is to cause all men to obey the precepts of virtue, and to become 
educated. It is clear that there is no absolute impracticability in the 
first ; and although the last, in the extended sense in which I use the 
term educated, is now totally inconsistent with the multiform, subor- 
dinate, and laborious employments of society ; yet I am persuaded, 
that if the first is ever accomplished, the second will be made to fol- 
low, through instrumentalities of which we can only obtain an indis- 
tinct glance. 

The opinion of Montesquieu is more plausible, because it is more 
vague and ambiguous, than that of De Lalme. The English constitu- 
tion, says Montesquieu, will be no more, when the legislative becomes 
more corrupt than the executive. But to this term, corrupt, we are 
entitled to give a more extended meaning than is generally attributed 
to it. A legislative body is corrupt, when its members procure their 
seats by bribery, or other sinister practices. This was the case when 
Montesquieu wrote, and it is to be feared that it is too much the 
case now. But a legislative body is still more corrupt, when exerci- 
sing not merely the ordinary legislative power, but representing the 
sovereignty of the state, it permits, century after century, the grossest 
inequalities in the representation, without adopting some plan of reme- 
dying them. A legislative body is corrupt when, holding the relation 
of guardian to a sister island, it permits the most wanton oppression 
to be practiced upon large bodies of men, because their religious 
creed was not the same as its own. All these things, and many more, 
were practiced, and undertaken to be justified, when "the spirit of 
laws" was written. And yet the English constitution, as it then ex- 
isted, was the beau ideal of government with Montesquieu. It is one 
advantage of free institutions, that they discountenance certain po- 
litical vices, by putting them out of fashion. Time out of mind, 
there has been a constant tendency to exaggerate the vices of the 
weak, and to extenuate those of the powerful, because the powerful 
lead the fashion. And if the British parliament has relaxed its se- 
verities toward Ireland ; has opened its doors to catholics, and placed 



240 NATURE OF FREE INSTITUTIONS. [book it. 

the representation in other respects, on a more equitable footing, we 
must not conclude that it has become more corrupt; that it has 
usurped power, although these things do in reality increase the 
authority of the legislature, and render it more than ever a counter- 
poise to the executive. 



BOOK III. 



CHAPTER I . 

RELIGIOUS INSTITUTIONS. 

There is an argument in favor of an established church, contained 
in Mr. Hume's History of England, which, on account of its extreme 
ingenuity, is entitled to great consideration. He admits that almost 
all the arts and sciences, which administer to the instruction of man- 
kind, may be safely left to the voluntary efforts of those who 
undertake to teach them; but he contends that religious doctrines 
constitute an exception to the rule. This eminent writer supposes 
that the violent and immoderate zeal of different sects, each striving 
by every art and device to gain proselytes to its cause, will be pro- 
ductive of interminable contention, and that in this way the tran- 
quillity and good order of the state will be deeply affected. He 
proposes, therefore, as the only cure for the evil, to give one sect the 
supremacy; in other words, to create an established church. But 
the mischief which Mr. Hume was desirous of curing, lies much 
deeper than in the mere number or the discordant opinions of 
different sects. It is to be traced solely to the mixture of politics 
and religion. It is the officious interference of the civil magistrate 
with religion, and the unbecoming interference of religious sects with 
state affairs, which whets the spirit of proselytism, and furnishes 
incentives additional to, and foreign to, those which the spirit of 
Christianity suggests to enslave the minds of men. By giving one 
sect a religious establishment religion is converted into an engine of 

government, and instead of curing we only give a different direction 
16 



242 NATURE AND TENDENCY [book in. 

to the mischief. The zeal of religious parties is more inflamed by 
withholding from them privileges which are bestowed upon the estab- 
lished church, than would be the case if all were placed upon an equal 
footing. To be placed under the ban of public opinion, to be sub- 
jected to some disability or disadvantage which does not attach to 
other men, is a powerful and not always a commendable motive for 
making unusual exertions to diminish the influence of the last. There 
is no effectual plan, therefore, of doing justice to all sects, and reconcil- 
ing the great interests of religion with those of the community, but 
dissolving the connection between church and state, and so by 
administering civil affairs that no sect, in the propagation of its doc- 
trines, shall draw to itself any part of the authority which appertains 
to government. 

Our speculations of any sort hardly ever rise much higher than the 
age in which we live. The use of all our knowledge is to be 
employed about the actual phenomena which are submitted to us ; and 
it is the phenomena which surround us which rouse in us all our 
aptitude for thinking, and supply all the information which we are 
able to attain. Books give us the history of the past, while all philo- 
sophical speculation has reference to the present. But to be success- 
ful in our inquiries we must witness the development, up to a certain 
point, of the events which are submitted to us. In no other way can 
we make any sure calculation of the results. The superiority of 
some minds to others, often consists in the opportunity afforded to 
take advantage of the favorable point of view. 

When Mr. Hume wrote, religious establishments had existed from 
time immemorial, and yet religious quarrels and religious conspiracies 
had constantly disturbed the peace of society. Neither the edict of 
Nantz, nor the English act of toleration, extinguished them. If he 
had lived at the present day, and witnessed the great advantages 
which have attended the abolition of a state religion in America, his 
views would have been more just, because more comprehensive, and 
he would have been led to a different conclusion. Warburton would 
not even then have been convinced. 

The late Dr. Arnold, however, a most able and estimable man, in 
an appendix to his lectures on history, has insisted upon the right 
and the duty of the state to take the affairs of religion under its 
superintendence. His notions of the office and functions of the civil 



CHAP. I.] 



OF FREE INSTITUTIONS. 



243 



magistrate "are such, that he would have government ordain the 
maxims of religion as laws, on the same principle that it makes any 
other enactments for the regulation of the citizens. If the public 
weal requires the imposition of taxes by a legislative body, for the 
same reason is it supposed that the public weal demands that the 
cardinal rules of religion should have the same authoritative sanction 
affixed to them. 

These are the views of a man who hated every species of oppres- 
sion, and who was sincerely and thoroughly devoted to the good of 
his fellow creatures. But although he can in no sense be said to 
have been wedded to a sacerdotal caste, yet it is evident that the 
institutions under which he lived exercised a powerful influence upon 
him, and communicated a tincture to all his opinions upon this sub- 
ject. The plan of which he has given a sketch (for it is attended with 
such inherent difficulties, that it will only admit of a sketch), is met by 
two arguments which it is difficult to answer, because they are both de- 
duced from experience, and from experience on a very broad scale. And 
first, it is an undoubted fact, that there is as strong a sentiment of reli- 
gion and morality pervading the American people, as exists among any 
other, and much stronger than among the great majority of nations 
who have had a state religion. In the second place, it will be ad- 
mitted that if people would voluntarily consent to pay their taxes, 
or if they would faithfully comply with all their private contracts, 
and abstain from the commission of personal injuries, there would be 
no necessity for the intervention of government, by the appointment 
of tax gatherers, and the establishment of courts of justice. This is 
not the case however in matters of this kind ; but it is so in all reli- 
gious concerns. Men do actually discharge their religious duties, not 
as well as could be desired, but infinitely better than when the state 
interferes to exact the performance of them. The very reasons 
therefore which render it incumbent on the state to interpose for the 
protection of one set of interests lest they should fall to decay, 
prompt it to abstain from intermeddling with another set lest they 
also should fall to decay. It is immaterial whether we call one class 
secular, and the other religious, interests : we may call both secular, 
or both religious; — but it will not follow that the actions which fall 
within these two classes should be subjected to the same discipline. 
The true theory then is, that inasmuch as religion creates a relation 



244 



NATURE AND TENDENCY 



[book III. 



between G-od and man, the religions sentiment is necessarily disturbed 
by the intervention of the civil magistrate. . 

It is not necessary to notice the intrinsic difficulties which would 
attend the scheme of Dr. Arnold, if it were attempted to be put in 
practice. Shall the maxims of religion, which are proclaimed by the 
civil magistrate as laws, be subjected to the interpretation of catholics, 
or episcopalians, of presbyterians, or unitarians ? Every attempt to 
prop up religion, by such a feeble instrumentality, would end in 
covering religion with dishonor. 

There is another view which may be taken in reference to Mr. 
Hume's plan. The clergy of an established church, from their posi- 
tion in society, and their acquaintance with much of the literature 
and philosophy of the day, have much to do with the education of 
youths. Now it is an undoubted fact, that the progress of religious 
inquiry is closely connected with that of philosophical inquiry ; that 
freedom of thought in the one, contributes to enlightened views in 
the other ; and that the true way to promote knowledge, is to extend 
the utmost latitude to all kindred pursuits. If it were only a ques- 
tion with regard to the progress of knowledge among the clergy 
themselves, this view would be of importance; but when it is recol- 
lected that they stand at the head of the schools of education, and 
thus assist in training to thought and speculation all the minds which 
are destined to figure in society in any way, the question becomes 
one of still greater magnitude. For although an ecclesiastical es- 
tablishment, with freedom of worship to dissenters, is greatly prefer- 
able to the supreme dominion of one sect; yet the evil is only 
mitigated, not cured, in that way. In place of the authority of the 
law giver, the influence of the law giver is substituted. And no one 
need be told, that the influence of government has a wonderful effi- 
cacy in repressing the efforts of the human mind, as well among 
those whom it takes under its patronage, as among those whom it 
discards from its countenance and favor. 

The plan of curing the dissensions of religious sects, by giving 
monarchical rule to one of them, is akin to the error which prevails in 
politics, that it is necessary to confer supreme authority on a prince, 
or body of nobles, in order to extinguish civil dissensions. Whereas, 
the true maxim is, that the peace of society is never in so much dan- 
ger, as when authority of any sort is consolidated, and never so well 



CHAP. I.] 



OF FREE INSTITUTIONS. 



245 



guarded as when it is dispersed. Power may be condensed in eccle- 
siastical as well as in political institutions ; and the scheme on which 
the American people have proceeded in religious affairs, is only an 
amplification of the great principle of the distribution of power. It is 
a mistake to suppose, that if some sects are disfranchised, they are 
therefore deprived of the ability to do mischief. On the contrary, 
their zeal and activity are increased, and their efforts are sure to take 
a direction prejudicial to the public tranquillity. We seek to shut 
them out from all interference with political questions by endowing 
one denomination with extraordinary privileges, and they are thereby 
more completely drawn within the vortex of politics. In other words, 
because religious parties are disconnected with the state, it does not 
therefore follow that they are disconnected with the political world. 
The sect between which and the state an alliance is formed, or which 
stands in the relation of dependent to the state, as its head, will 
naturally exercise its influence in favor of the government, and the 
dissenting sects will throw their influence in the opposite direction. 
These behold their own government as the author of the disabilities 
under which they labor, and only wait for a favorable opportunity to 
crush an authority so unnatural and so revolting to all persons of 
good sense. Ireland is an example on a great scale, and the Ameri- 
can commonwealth, before the thorough dissolution of the connection 
between church and state, is an example on a small one. And 
even in England, from the commencement of the French revolution to 
the present day, political disputes have derived much of their acerbity 
from the same source. It is easy to see that all questions of parlia- 
mentary reform receive a complexion from the views and influence of 
the dissenting sects. It is equally easy to perceive, that many other 
projects, of a still more sweeping character, and which are only smoth- 
ered, not destroyed, are engendered by the same cause. 

It is now proved that the greatest interest which can occupy the 
mind of man — that which is fitted above all others to engage his at- 
tention from the age of puberty to the grave — may be entirely with- 
drawn from the care of the civil magistrate, and that both religious 
and secular interests will be thereby subserved. The plan of an es- 
tablished church was at one time adopted in all the American states, 
except Pennsylvania and Rhode Island. The nature of the establish- 
ment was, to be sure, not the same in all. In Massachusetts, Con- 



246 



NATURE AND TENDENCY 



[book III. 



necticut, New York, Maryland, Virginia, and South Carolina, the 
connection between church and state was as strict as in Great Britain. 
In the others it existed in a modified form. In all of them this con- 
nection has been entirely dissolved; in the greater part, soon after 
the revolution. But it was not until the year 1816, that it was 
thoroughly put an end to in Connecticut ; and not until the year 
1833, that the finishing blow was given to it in Massachusetts.* 
Men of all denominations in every one of these states — those who 
were most opposed to the introduction of the new system — now ac- 
knowledge that it has been productive of great benefit to both church 
and state. There is more religious harmony, and consequently a 
greater degree of political tranquillity, simply because there is nothing 
to pamper the power of one sect, and to provoke the hostility of 
others. As the connection, wherever it exists, is established by the 
laws, the sects who feel themselves aggrieved will take an active part 
in all political elections, for the purpose of delivering themselves from 
the burden of which they complain. Thus, in Connecticut, where the 
congregational sect was the favored one, all other denominations, epis- 
copalians, baptists, methodists, and universalists, united themselves 
closely together in order to uproot the laws ; and after years of strug- 
gle, which occasioned painful heartburnings in every part of society, 
they at last succeeded in gaining a majority in the legislature, and 
acquiring that christian liberty to which all men are entitled. So in 
Virginia, after the revolution : all the dissenting sects combined to in- 
fluence the elections, as it was only in that way that the episcopal, 
which was the established church, could be deprived of the authority 
and privileges which had been conferred upon it. The debate, which 
resulted in the dissolution of church and state, was one of the most 
stormy which has occurred in the Virginia legislature. 

This great question, as to the political constitution of the church, 
agitated the German reformers at the commencement of the reforma- 
tion. They were exceedingly anxious to get rid of the supremacy of 
princes in every thing which related to the interests of religion. But 
they could conceive no way of doing this but by placing themselves 
under the dominion of an ecclesiastical hierarchy. Vain and fruit- 
less expedient; for an ecclesiastical hierarchy will ever terminate in 



* Religion in America, by R. Baird, pp. 115, 116. 



V 



chap, i.] OF FREE INSTITUTIONS. 247 

an alliance between church and state. It was reserved for the 
American states to solve this difficult problem. And the religious 
institutions of this country may be said to be the last and most im- 
portant effort which has been made in completing that great revolu- 
tion which commenced in the sixteenth century. 

I have alluded to the unfavorable influence which an ecclesiastical 
establishment has upon the progress of knowledge and the general 
freedom of thought. This influence is very striking in every thing 
which concerns the political interests of the state. The ministers of 
an established church look with singular complacency upon the abuses 
which have crept into the state : since to question or discountenance 
them would be to impair materially the authority which assists in 
upholding themselves. Civil government is as much .the creature of 
improvement as any other human interest : and whatever operates as 
a restraint upon inquiry, raises up obstacles to this end ; the more 
formidable as those who create them are insensible of their influence. 
The alliance between the government and a powerful and influential 
priesthood enables secular princes to defy public opinion. The minds 
of men, pressed by the combined weight of superstition and authority, 
are slow to find out any thing wrong in a system to which they and 
their ancestors have been habituated: and people soon persuade 
themselves that the king has the same right to govern the state which 
Grod has to govern the world. 

Many causes may contribute to counteract this influence. No 
nation is permitted in the nineteenth century to sit securely locked up 
in its own institutions, without receiving numerous influences from 
abroad. The communication between the people of different countries 
is more constant now than it was between the people of the same 
country a century ago. In Great Britain it is in spite of, not in 
consequence of, the connection between church and state, that the 
general mind has been borne onward in the march of improvement. 
The existence of an established church has produced, what Mr. Hume 
was desirous of avoiding : it has multiplied the number of dissenters 
from the church of England ; so that instead of being an inconsider- 
able body as formerly, they now stand, in England and Wales, in 
something like the proportion of six millions to nine millions. And it is 
not improbable that the growth of their numbers, joined to the supe- 
rior energy which they possess, may at some not very distant day, 



248 



NATURE AND TENDENCY 



[book HI. 



bring about the same revolution, and by the same means, as was 
accomplished in Connecticut and Virginia. 

The clergy of the established church in England were at the head 
of the party which first stimulated the American and then the French 
war. There was but one of the English prelates who voted against 
the first : the bishop of Llandaff was the only one who declared him- 
self in opposition to the second. The African slave trade — the bar- 
barities of which are so shocking to every mind of humanity — was 
vindicated in parliament by nearly the whole body of prelates: so 
that Lord Eldon was heard to declare that a traffic, which he had 
learned to believe was the most infamous in which human beings 
could engage, could hardly be so inconsistent with the principles of 
Christianity.* It was the bench of bishops who opposed most vehe- 
mently the reform bill, an act demanded by. every consideration of 
prudence, not to say of justice, and equity; and the only possible 
objection to which is, that it did not go far enough. If we inquire 
what body of men have been most lukewarm in the cause of popular 
instruction; who most hostile to the noble efforts of Komilly and 
Mackintosh, to ameliorate the provisions of the criminal code; the 
answer is the same : it was the clergy of the established church, who 
exerted themselves directly or indirectly to thwart these improve- 
ments. 

It is clear, then, that the clergy of an established church, in conse- 
quence of their close connection with the crown, the elevated position 
which they occupy in the state, and their power of influencing the 
people, may become an engine in the hands of government, capable 
of being wielded as effectually as the army or navy. 

That the principle of religion is absolutely necessary to hold 
together the elements of civil society, is a proposition which will be 
doubted by few. It is so, not merely as has been supposed, because it 
presides over a large class of actions of which the civil magistrate 
cannot take cognizance, but because it lies at the foundation of all 
our notions of right, and prevents, in innumerable instances, the com- 
mission of crimes which are punishable by the civil magistrate. In- 
deed it is doubtful, if human affairs were delivered over to the conduct 
of beings in whom the religious sentiment was not the master principle, 



* Black Book, pp. 6 and 7. 



CHAP. I.] 



OF FREE INSTITUTIONS. 



249 



whether the terms civil magistrate and laws would have any signifi- 
cation, and whether the universal licentiousness which would prevail, 
involving, as it must, both magistrate and citizen, would not disable 
any community from upholding institutions which were calculated to 
redress and punish crime. 

It may be supposed, that if the religious principle is of so great 
importance to the well being of society, that it should in some way or 
other enter as an element into the general legislation ; and admitting 
that an established church is as inconsistent with the spirit of Chris- 
tianity as it is with the genius of free institutions ; yet that there are 
a number of ways in which the laws might interfere, in order to secure 
the observance of religious duties. But it is not in the power of 
human legislation to reach all the actions of men, and although this 
might be thought to be a great defect in the constitution of human 
nature, yet in reality, it is a wise provision, calculated to strengthen 
the religious sentiment, and to cultivate a pure and genuine morality. 
For if the laws were to overshadow the whole circle of human actions, 
men would be converted into mere automata, religion into an empty 
ceremonial, and nothing being left to the natural impulse of the heart, 
the fountain from which the laws derive their chief strength would 
be dried up. 

It is, to be sure, difficult to determine always what are the exact 
limits of legislation — to distinguish between those actions with which 
government should interfere, and those which it should let alone. 
But, although the precise boundary between the two is invisible, yet 
in practice it is easy to find it. Something must go behind the laws, 
which cannot therefore be itself the subject of legislation. 

A very eminent writer, and one of the greatest statesmen France 
has produced, Benjamin Constant, is opposed to an established church; 
but he believes it to be necessary that the clergy should be salaried 
by the government. This is one step in advance of the other Euro- 
pean states, for it is not the clergy of one, but of all, denominations 
who are intended to be provided for. Great ideas seldom spring up 
in the mind more than half-formed. The understandings of the 
wisest men are in a state of continual pupilage. And here is one of 
the most powerful and enlightened advocates of civil and religious 
freedom, who desires, in the mildest manner possible, to cement the 
religious interests of the people with their political institutions. He 



250 



NATURE AND TENDENCY 



[BOOK III. 



who is master of my income, possessess. an influence over my actions, 
and if lie is clothed with political power, he possesses something more 
than influence — he possesses authority. Benjamin Constant supposes, 
that the clergy will not be adequately rewarded, unless the state inter- 
poses to provide for them. And yet in America, where the voluntary 
principle is univerally introduced, the ministers of religion are much 
more liberally paid than in France. The amount raised for this pur- 
pose in the United States, with a population of twenty millions, is nearly 
eleven millions of dollars. In France, the population of which is 
thirty-two or three millions, it is not much more than nine millions of 
dollars. The compensation which the American clergy receive is 
larger than is paid in any state of continental Europe. It is double 
what it is in Austria, or Russia, and quadruple what it is in Prussia. 

The plan proposed by Benjamin Constant has been incorporated 
into the constitutional "charte" of 14th August, 1830. In some re- 
spects, it resembles the system which formerly prevailed in two of the 
New England states. Both plans may be characterized as a species 
of modified connection betweeen church and state. In Massachusetts, 
the parish or township imposed the taxes necessary to the suport of 
the clergy. In one respect, this is infinitely preferable to the French 
system ; for in the first, the duty of defraying the expense was de- 
volved upon the local jurisdiction where the church was situated ; 
while in the last, being collected by the government, a system of 
universal centralization is established, both in church and state. But 
in another respect, the French system is most entitled to approbation; 
for it distributes the reward among all christian sects; — while in 
Massachusetts, it was reserved for ministers of the protestant faith 
exclusively. The Massachusetts Scheme was a relic of those institu- 
tions which were planted during the early settlement of the colony, 
when the presbyterian church was the established religion. The con- 
stitution of 1780 effected a great change in this respect. The funds 
collected, instead of being appropriated to the support of one denom- 
ination, were reserved for that sect to which the majority of voters in 
the township belonged. But the minority, however large, were thus 
compelled to support a clergyman of a different faith than their own ; 
and were frequently deprived of the building which they had them- 
selves erected. Like the English system, the people were obliged 
to maintain a clergyman to whose creed they were conscientiously 



CHAP. I.] 



OF FREE INSTITUTIONS. 



251 



opposed. It was not until 1833 that tins last remnant of superstition 
was obliterated, and the union of church and state finally terminated 
in America. 

An established church is in no way subservient to the interests of 
religion, or the good government of the state. It does not allay the 
feuds between rival sects ; it only inflames their zeal. It is surprising, 
when Mr. Hume had advanced so far as to admit of toleration to all 
dissenters, that the same process of reasoning had not conducted 
him to the end, and persuaded him that if such happy consequences 
were the fruit of, removing some part of the unnatural restraint im- 
posed by the civil magistrate, that still more salutary effects would 
follow from removing it altogether. 

An ecclesiastical hierarchy does not contribute to the promotion of 
religion, among either people or clergy. Its tendency is directly the 
reverse. It lays the foundation for wide-spread irreligion and immo- 
rality. The cost of the church establishment in England is as great 
as in all the states of continental Europe put together. But a large 
proportion of the clergy have no more connection with their congre- 
gations, than if they resided in America. They receive the stipend, 
and employ deputies for a pitiful sum to perform the duty. Nor can 
it be otherwise, when the abominable system of pluralities prevails so 
extensively, and when the minister is entirely independent of his con- 
gregation for his salary, and may not even be the man of their choice. 
The church establishment costs about forty millions of dollars, and 
out of this enormous sum not half a million is paid to the four thou- 
sand two hundred and fifty-four curates, who are for the most part 
employed to do the real and effective duty. Not only have the con- 
gregation of the established church no voice in the choice of their 
minister; the right of representation is as much the subject of traffic 
as the public stocks, or any other commodity in the market. The 
consequence is that immorality and licentiousness prevail to a fearful 
extent, among a large proportion of the English clergy. The mere 
ceremonial of religion is substituted in the place of religion itself ; and 
may be said to constitute the system of modern indulgences, by which 
men purchase for themselves an exemption from reproach ; — a system 
which does not differ essentially from that preached in the sixteenth 
century; but simply conformable to the fashion of this day, as the 
other was to the age of Leo the tenth : so that unless a second Luther 



252 



NATURE AND TENDENCY 



[book III. 



appears, the day may not be distant when persons in whom the reli- 
gious sentiment is not extinct, may set themselves about inquiring 
whether, in order to be religious, it may not be necessary to abstain 
from going to church. In the United States, although there is much 
connected with this matter which is calculated to make a thoughtful 
mind ponder, yet it cannot be doubted (since we have the testimony 
of impartial Europeans) that the observance of religious duties is 
more strict, and the conduct of the clergy more free from reproach, 
than in the great majority of the European states. Indeed it may 
be doubted whether, if there were no vicious clergymen, there would 
be any infidels. 

The ecclesiastical establishments of Europe and the United States, 
then, present this difference : that in the former, the clergyman is in- 
dependent of his congregation for his place and salary, while in the 
latter he is entirely dependent upon it for both. The American sys- 
tem is productive of one mischief. The minister is sometimes obliged 
to wink at many improprieties among his congregation, in order to 
retain his popularity. But there is no way of avoiding this, but by 
encountering still greater difficulties. Any scheme is preferable to 
One which would give us a fox-hunting, card-playing clergy, or a 
clergy which could afford to be slothful and idle because they were 
opulent. In the European system, corruption commences at the foun- 
tain head. Men cannot deliver themselves from it, if they were so 
disposed ; and the new habits of thinking, which are inculcated by 
the example of those in high places, render them indifferent about 
doing so even if they were able. 

In an American congregation, I can always discern some persons 
who are sincerely religious. But the minister is equally dependent 
upon all the members of his congregation : upon those who desire to 
see him true to the faith, as well as upon those who would have him 
countenance a lax and fashionable morality. Some compromise must 
take place between these two different classes. Those who are indif- 
ferent, do not wish to separate themselves from the rest of the con- 
gregation, in order to choose a minister more to their taste. This is 
( most generally ) the very last thing they would desire. Indepen- 
dently of the increased expense they would incur, and independently 
of the odium which would follow from an open rupture, there is that 
sense of justice among the great majority of mankind, that they 



CHAP. I.] 



OF FREE INSTITUTIONS. 



253 



respect virtue wherever it is to be found, and admire nothing so much 
as a fearless and unwavering performance of duty, even though it may 
interfere with their own practice. I observe, among an American con- 
gregation, a very general willingness, on the part of those who are 
indifferent to religion, to defer to the opinion, of those who are sincere. 
They distrust their own judgment and feel as if they had no right to 
command, where they had never learned to obey. The influence 
which is exercised in these ways is highly salutary. The clergyman 
feels that his moral power after all depends upon the religious part of 
his congregation ; and those of his hearers who would have had things 
conducted after a different manner — who perhaps joined the congrega- 
tion to promote their worldly interests — are at last persuaded, that if 
religion be true, religion must be preached. All parties are in this 
way made better than they would otherwise be. The sagacious cler- 
gyman, with his eye ever intent upon the action of so many apparently 
contradictory motives, and not wishing to dash the prospect of doing- 
good, but rather to make every thing turn up for the best, does not 
relax the strictness of his preaching, but dismisses that tone of au- 
thority which is so prevalent among the clergy of an established 
church. He uses the most straight-forward, and yet the most gentle 
means to accomplish his object. He renders the good, better; and 
wins over many who would be irritated, perhaps forever alienated, by 
a contrary course. So true is it, that a fashionable clergyman is not, 
therefore, a popular one, that I have known many instances in the 
United States, of pastors dismissed by their congregations for levity 
and unbecoming manners, and very few where they were dismissed in 
consequence of a fearless and upright discharge of their duties. 

In France, not only are the clergy dependent for their salary upon 
the government; they are dependent upon it for their places. The 
league between church and state is even closer than in Great Britain. 
In the last the minister collects his own tithes ; in the first govern- 
ment receives and disburses the taxes which are imposed for this 
purpose. The king of France nominates the archbishops, thirteen in 
number: he also nominates all the bishops. Both these orders of 
ecclesiastics receive canonical investiture from the pope, and make 
solemn oath to the king, as a condition precedent to entering upon 
the discharge of their functions. The bishops, on the other hand, 
nominate all the inferior clergy : but these nominations, with some 



254 



NATURE AND TENDENCY 



[book im 



exceptions, are submitted to the king, who may either reject or ratify 
them. 

Another remarkable feature in this system consists in the control 
which the crown exercises over the clergy of the protestant church. 
This church is presided over by the ministers, by consistorial assem- 
blies, and by synods. But the election of a pastor, although it is 
made by the consistory, must receive the approbation of the king in 
order to be valid; and although the synods may make regulations 
relative to church discipline and doctrine, yet their decisions are 
obliged to be submitted to the king for his approval. Nor have the 
synods liberty to assemble without the permission of the government. 
The state is not satisfied with being the head of one church ; it is the 
head of all. It reigns supreme, not merely over the predominant 
sect, but over all sects. Like the Grecian and Roman common- 
wealths, it takes all denominations under its guardianship, and estab- 
lishes all by law. Doubtless this state of things is greatly to be 
preferred to that which formerly existed, when this fine country was 
as much distracted by religious strife as it was by political dissen- 
sions. The step which has been taken toward the promotion of 
religious freedom is immense. And if government does interpose at 
all in ecclesiastical matters; it may be said with a good deal of 
justice, that inasmuch as the clergy of all denominations are provided 
for by law, all denominations should come under the supervision of 
the law. 

But the introduction of the voluntary principle, which now prevails 
universally in America, is a prodigious step in advance of what any 
other government has attempted It is a system "sui generis," and has 
grown up silently and steadily, without attracting much observation 
from abroad. Nevertheless, I regard this complete severance of 
church and state as the " chef d'oeuvre" in ecclesiastical government, 
and as redounding more to the political tranquillity of the state than 
any single civil regulation which has ever been made. The connec- 
tion between all secular and religious interests is strengthened, just 
in proportion as the connection between government and church is 
weakened. 

The rise of a sacerdotal caste in the United States seems to be 
forbidden by the great multiplication of sects. Religious and civil 
liberty are both protected by the same means. The unbounded 



CHAP. I.] 



. OF FREE INSTITUTIONS. 



255 



freedom of thought which pervades every class of society creates the 
greatest diversity of opinions ; and ^he influence which is possessed 
by any one sect is modified and controlled by the influence of all 
others. Each wants to be free ; but none can succeed in obtaining 
freedom, unless all are permitted to enjoy it. 

When one surveys the vast establishments of our bible, missionary, 
and other societies ; when one considers the princely revenues which 
are received by some of the churches, in one instance, almost vieing 
with those of an eastern prince, the thought may very naturally cross 
the mind of one who is least disposed to take exception to any thing, 
because it is not in conformity with his preconceived notions, whether 
all these things may not ultimately terminate in raising up an eccle- 
siastical hierarchy similar to what exists in most other countries. 
Religion was every where first preached in simplicity ; but wealth and 
prosperity, in numerous instances, corrupted the clerg}^, who sought 
to conceal this deplorable change from the multitude, by assuming 
more pomp, arrogating more authority, and causing the unintelligi- 
bleness of their doctrines to keep even pace with the degeneracy of 
their manners. It is in this way that a sacerdotal caste, as distin- 
guished from an independent religion, has been established in so 
many countries. Nor do I pretend to assert that there is any abso- 
lute certainty the United States will be saved from this destiny ; nor 
that the approach to it may not even be more gradual and more con- 
cealed from public observation than it has been any where else. One 
way to guard against a public evil is to persuade every one that its 
existence is possible. The watchfulness and circumspection which 
are thus created, prevent innumerable obstacles in the way of those 
who might be disposed to abandon the simplicity of religious worship 
in order to build up a gorgeous fabric of superstition. 

When we consider that not only are powerful religious associations 
constantly springing up in the United States, but that government 
and religious sects do not stand upon the same vantage ground, there 
might seem to be an additional reason for feeling alarm. The state is 
forbidden by all the American constitutions from intermeddling with 
religion; but the clergy are not forbidden to interfere with affairs of 
state. They are not only at liberty to inculcate political doctrines 
from the pulpit, but under the federal, and most of the state constitu- 
tions, they are eligible to seats in the legislative body, and may hold 



256 



NATURE AND TENDENCY 



[book III. 



other important offices. An immunity, however, is not of equal 
advantage to all, unless all are equally able to turn it to account. 
The clergy and the laity may be placed on the same footing, so far as 
regards the mere possession of a privilege, but they may not be able 
to exercise it with the same facility. Now I observe among the 
people generally, a marked disapprobation of everything like political 
harangues from the pulpit. I observe an equally general disinclina- 
tion to elect ministers of the gospel to civil offices. The constitutional 
ordinance, which prohibits the government from interfering with reli- 
gion, is founded upon the notion that religion is something beyond 
and above human legislation, and that to mix the two incongruously 
together would be to do violence to both. No class is more sensible 
of this than the clergy themselves. They feel that to mingle in the 
disputes of political parties, is to desert a strong for a weak position ; 
that although an inflammatory harangue from the pulpit, or a seat in 
the legislature, may give them a temporary or local popularity, yet 
they lose in the same proportion, in point of weight and influence 
as clergymen. The consequence is, that no class of men are so unam- 
bitious of political preferment, and ( with very few exceptions ) it is 
with exceeding caution and distrust, that they venture to touch upon 
the political questions which divide the community. 

But it is the great multiplicity of sects in the United States which 
constitutes the chief security against the growth of an ecclesiastical 
hierarchy. The same causes which act upon political parties, act 
upon religious sects. Whenever one party in the state is disposed to 
carry things with a high hand, and to arrogate to itself an exclusive 
authority, the alarm is instantly given, and hostile opinions grow up, 
which tend to counterbalance its authority. And as soon as one reli- 
gious sect gives promise of becoming an aristocratic body, other 
denominations vie with each other in calling back the minds of men 
to the pure doctrines and manners which originally distinguished the 
christian community. It even happens sometimes that two or more 
sects are formed out of one. An incompatibility of views, arising out 
of causes similar to those I have mentioned, produces a schism in a 
whole denomination, and leads to a still greater multiplication of sects. 
We have seen a remarkable example of this in the United States 
within a few years. The three most numerous sects, the presbyterians, 
baptists, and methodists, have been rent in twain, in consequence of 



CHAP. I.J 



OF FREE INSTITUTIONS. 



257 



dissensions among themselves. And although the interpretation given 
to some doctrines, or a desire to effect a change in some form or other 
of church government and discipline, have been put forward as the 
causes of these disagreements, I think I can discern behind them 
some other more powerfully-operating motives. Thus to take a single 
example: although the new-school separated from the old-school 
presbyterians chiefly in consequence of objections to the doctrine of 
the necessity of the will which the latter maintained, a doctrine which 
probably no argument will ever shake, yet it is possible for a religious 
sect to build up a well-compacted system of doctrines, and then, 
forgetting that this after all constitutes but the skeleton of reli- 
gion, to fall down and worship it, instead of worshiping religion. I 
think I observed a strong desire on the part of those who sece- 
ded, to introduce more warmth into religious exercises, and a 
more practical manner of teaching and expounding the truths of 
Christianity. / 

If I could fasten upon any causes which will arrest this multipli- 
cation of sects, I might then be able to discern the existence at some 
future day of a sacerdotal caste in America. Extreme indifference to 
religion, if it pervaded all classes, would undoubtedly have this effect. 
The institution would degenerate into a mere form, and then a pom- 
pous ceremonial. The priesthood would acquire power in proportion 
to the little interest which the general population felt in religion. 
And the manners of men would be molded into the form best calcu- 
lated to fortify the worldly authority of the clergy. Where an uni- 
versal indifference prevailed, there could be no incentive to diversity 
of opinion, and the distinction of sects would cease. 

Will the same causes which threaten every where to demolish the 
idea of kingly rule, be equally fatal to the notion of a single ruler of 
the universe ? Is the unity of the Governor of the Universe so allied 
with that of a human governor, that if all traces of the last should be 
obliterated, religion would be in danger of being undermined ? If it 
be true, that in other countries what are termed the enlightened 
classes are infidels at heart, and only profess religion because they 
believe it is a check upon the masses, what will be the consequence 
when the thorough dissemination of instruction renders the great ma- 
jority of the people well informed ? I predict, that if ever the spread 
17 



258 



NATURE AND TENDENCY 



[BOOK III. 



of equality is fatal to the notion of unity in religion, it will not give 
rise to a plurality of gods ; it will sweep all religion from the face of 
the earth, and satan will be literally unchained, to turn earth into 
hell. I cannot but believe, that when the North Amercan continent 
contains a population of one or two hundred millions, all speaking 
the same language and impelled by an irresistible curiosity to make 
inquiry into every thing ; that when sameness of manners and same- 
ness of dialect have opened free access to every one's thoughts and 
schemes, it will exert an influence such as has never been witnessed 
upon the progress of knowledge, the social organization, and the reli- 
gious institutions. But I am of opinion that the diffusion of equality 
will be fatal to the worldly authority of priests, and that the right 
modeling the authority of civil magistrates will add wonderfully to 
the reverence for God. I find that the greater the range of inquiry 
of a single mind, the more diverse the objects which it takes in, the 
more certain it is of arriving at some general and presiding truths. 
There is nothing, therefore, in the diversified views of religious or 
political sects, which is hostile to the notion of a Supreme Governor of 
the universe. 

It is true, until very modern times, the popular mind was unaccus- 
tomed to meddle with the subject of religion. Now, it approaches 
that, as well as every other interest belonging to man, and grapples 
with religious creeds with the same freedom which it employs in at- 
tacking political opinions. The unlimited range of inquiry subjects 
every institution to the most fearless and unscrupulous examination. 
Is there not danger, then, not that a passive indifference, but an uni- 
versal unbelief, may seize upon the minds of men, and succeed in 
thoroughly rooting out the principle of religion ? 

There are some things which it is not in the power of man to ac- 
complish, although these things have to do with his own interests 
exclusively. He cannot alter the structure of the human understand- 
ing, nor extirpate the affections of the heart. In every estimate or 
conjecture which we may form of the destiny of our race, we are safe 
in reposing upon these as undeniable truths. We can make no cer- 
tain calculation in regard to individuals, so as to say what their con- 
duct will be under particular circumstances ; but with regard to the 
race of mankind, we may predict with absolute certainty. We are 



CHAP. I.] 



OF FREE INSTITUTIONS. 



259 



obliged to believe that the religious sentiment will never be extin- 
guished upon the same, although not on any higher, ground than 4;hat 
which convinces us that insanity or idiocy will not be the lot of the 
human species, or that the private affections and desires, which have 
animated the heart since the first formation of man to the present 
time, will never be eradicated. 



260 



NATURE AND TENDENCY 



[BOOK III. 



CHAPTER II. 

INSTITUTIONS FOR THE EDUCATION OF THE PEOPLE. 

The great use of popular education, in a political view, consists in 
its incapacitating the people for any other than free institutions. 
Education tames ambitious men, and presents new motives, and a new 
theater of action. It trains the people to a due sense of their weight 
in society, gives them new habits, new modes of thinking, and a 
different style of manners. In this way, they not only acquire a 
decided taste for such institutions — they become morally unable to 
adopt any other. When the great bulk of the population is unedu- 
cated, a few men of ill-regulated ambition, banded together, may 
wield an irresistible influence in the community; but where popular 
instruction is widely disseminated, the additional power which is 
imparted to the mass acts as a perpetual counterpoise to this ambi- 
tion. If the man who craves after public distinction is well informed, 
and expert in debate, so also will be the sons of the people. The 
former may set himself about studying the people, and may calculate 
upon success in proportion to his adroitness in moving their prejudices; 
but the latter acquire an equal facility in diving into the depths of all 
his motives. Those qualities which were dangerous when confined to 
a few, will be of unspeakable advantage when dispersed among a 
very numerous body. Education, then, is a constituent part of the 
plan of free institutions. 

In some countries politicians who are bent upon their own aggran- 
dizement, acquire an exaggerated notion of the importance of striking 
upon the imaginations of the people. But this is an instrument diffi- 
cult to use where a system of popular instruction is introduced. 
Knowledge, information, habits of reflection, especially where these 



CHAP. II.] 



OF FREE INSTITUTIONS. 



261 



are employed about the daily business of life, act as a wonderful 
damper upon all flights of the imagination. Nothing is more amusing, 
and at the same time more instructive, than to witness the awkward 
behavior of some men of untaught or unteachable minds, in a country 
where the people have acquired an elevated position. They want to 
imitate the great men of other countries, but for want of acquaintance 
with the temper of the times, every step they take places them in a 
false position, and reveals difficulties which they are unable to sur- 
mount. They become entangled in the web they had woven for 
others. If they move onward, they perhaps make themselves amena- 
ble to the laws; if they falter and stumble, they are the subject of 
scorn ; if they make good their retreat, they are covered with ridicule. 
It is from constant experience of the unsuitableness of those arts of 
ambition which were formerly so successful, that the active spirits 
in a democratic community are gradually inured to new modes of 
thinking and acting. They acquire a clearer insight into the scope 
and aim of the institutions under which they live. They strive to 
render themselves eminently great by being eminently useful. And 
as this opens in the paths of eloquence, learning, and every species of 
intellectual effort, an almost boundless field of ambition, the altered 
temper which they acquire communicates an influence to others. The 
example once set, is soon erected into the fashion, is incorporated into 
the national manners, and becomes the standard of conduct for suc- 
ceeding generations. So true it is, that the diffusion of education 
both elevates the people and tames the ambition of public men. No 
man in the United States dreams of running the career of Cromwell, 
or Buonaparte. Intellectual distinction, capacity for business, large 
and generous views of patriotism, are the aim of every one, even in 
those countries where the noise of this revolution is just beginning to 
be heard. Such statesmen as Guizot, Brougham, and Lowndes, now 
rise up in society, and take the place of the Bichelieus, and Straffords, 
of former days. The power which it is necessary to confer upon public 
men is not so great as it was, because the people are now able to do 
for themselves a great many things, which were once obliged to be 
devolved upon others ; and the authority which is exercised by gov- 
ernment is wonderfully tempered in practice, in consequence of the 
course of discipline which the nftnds of all public men have to pass 
through. 



262 



NATURE AND TENDENCY 



[BOOK Hfj 



This alteration in the structure of society, which is brought about 
solely by the elevation of the popular mind, is full of important con- 
sequences. As it sets bounds to the personal influence of ambitious 
men, it presents a natural obstacle to the introduction of monarchical 
or aristocratic institutions, and disposes all the artificial governments 
to imbibe some of the spirit and temper which belong to free institu- 
tions. In the early stages of society, the authority of a few men 
of commanding character may be highly salutary, although that au- 
thority may not be strictly bounded. But the employment of this 
instrument ceases with the advancement of society, at least, where 
that advancement is general and not confined to the superior classes. 
In other words, when popular instruction is diffused, the authority 
of government is abridged, because the people are then able to stand 
by themselves. 

It is no inconsiderable argument in favor of a system of general 
education, that it tends greatly to preserve the identity of the lan- 
guage among all classes of the population, and consequently to main- 
tain civilization. Where no such system exists, in a country of only 
tolerable extent, the people of different districts very soon fall into 
the use of different dialects, which by and by become distinct lan- 
guages. The simplest elements of education, the knowledge how to 
read and write, uphold the standard of the language; and by so 
doing maintain the standard of the laws and manners. Newspapers, 
which are the genuine fruit of education, exercise the same influence. 
The unexampled circulation which these journals have reached in the 
United States, is undoubtedly one reason why the uniformity of the 
written and spoken language is so well preserved. If then we do not 
confine our view to the present inhabited part of the United States ; 
but consider that all North America is destined to be peopled from 
the Anglo-Norman stock, the benefits resulting from a thoroughly- 
diffused education are incalculable. The present territory of the 
union will easily contain one hundred and fifty millions of people ; 
and the use of a common tongue among this vast population will 
exert a mighty influence upon the progress of society. For as the 
difference of languages is one of the greatest obstacles to the diffusion 
of civilization, the doing away with this difference will cause a greater 
amount of civilization to bear upon the ruder and less-cultivated 
portion of this great commonwealth. And as the influence of America 



CHAP. II.] 



OF FREE INSTITUTIONS. 



263 



upon Europe will be prodigiously augmented, the nations of the old 
world will be brought more and more within the circle of American 
civilization. People who speak the same language, look upon each 
other in some sort as members of one family. Those who speak dif- 
ferent languages are sometimes very little disposed to regard each 
other as fellow creatures. The easy communication and sympathy 
which the prevalence of one common dialect introduced, is singularly 
favorable to the spread of all sorts of improvement. The minds of 
Great Britain are now chiefly exerted for the people of Great Britain. 
Those of France and Germany for the people of those countries. But 
if all Europe spoke one common tongue, the intellect of any one 
country would be an addition to the stock of general intelligence. If 
the people of the American states had spoken different languages, 
there would perhaps have been no union: at any rate the advance of 
knowledge and civilization would have been materially retarded. 
The influence which has been exerted upon European society, in con- 
sequence of French, or English, the language of the two most enlight- 
ened nations of that continent, being spoken in all the great capitals, 
is very perceptible to any one whose attention has been drawn to the 
subject. More intelligence, and a greater amount of civilization, have 
been introduced into St. Petersburg!], and Hamburgh, Copenhagen, 
and Stockholm, Vienna and Berlin : and the effect has been felt, more 
or less, in the remotest provinces of those countries. But it would 
be very difficult to calculate the amazing influence which would have 
been exerted, if all Europe had spoken one language. 

Before the American territory is peopled with one hundred and 
fifty millions, it will probably be divided into distinct confederacies ; 
and the identity of the language will contribute powerfully to a good 
understanding among those separate communities. It is the main- 
tenance of one civilization, not the maintenance of one union, which 
we are most deeply interested in. Identity of language in some 
degree takes the place of an actual equality among men. The Scot- 
tish highlanders and lowlanders were, until a very recent period, like 
two distinct nations inclosed within the same nation. The spread of 
the English language among both has broken down the barriers which 
separated them as completely as if they had been distinct orders of 
men. The laws, the manners, and the intelligence of the more cul- 
tivated districts, were quickly diffused among all, when all were 



264 



NATURE AND TENDENCY 



[book III. 



enabled to understand each other. Nothing contributes so much to 
the action of mind upon mind, as placing men on an equality ; nothing 
so much to civilization, as this action of mind upon mind; and noth- 
ing so much to the maintenance of free institutions as the equal 
diffusion of civilization. 

Leibnitz conceived the idea of an universal language ; but he did 
not carry the thought further than to suggest the practicability of a 
language which should be common to the learned. He did not ven- 
ture to propose to himself the idea of all the nations of a great conti- 
nent, containing one or two hundred millions of people, possessing a 
language which should be the familiar dialect of all classes. Never- 
theless, it would be an achievement of infinitely greater importance to 
the progress of the human understanding. Profound and inquisitive 
minds derive the materials upon which they work chiefly from the 
unlearned; and the unlearned derive their incitements to exertion 
from the learned. The observation and analysis of the minds of other 
men is the foundation of much the greatest part of human philoso- 
phy; and the broader the field of vision, the more exact and compre- 
hensive will be the results. One of the principal impediments to the 
progress of knowledge consists in the extensive prevalence of what 
may be termed class opinions, in the different systems of thought. 
These opinions were originally taken up from a narrow view of human 
nature, and many of them are gradually discarded by the learned 
themselves ; but a great number are still preserved, because they ren- 
der philosophy a sealed book. If we compare a Chinese or Hindoo 
system of laws, or of ethical science, with works of the same kind, 
which have come down to us from Greece and Rome ; and if we run 
a comparison between these last and similar productions of English 
or American origin, we shall be made aware of the wholesome influence 
which has been exerted upon some of the most important human in- 
terests, by opening a wide field for observation and inquiry. The at- 
tention of the popular mind does not merely render a system of phi- 
losophy or of laws more level to the common apprehension ; it renders 
all human speculation more solid, coherent, and comprehensive. 

Small and insignificant beginnings often give rise to important con- 
sequences, and influence the destiny of generations through the longest 
lapse of time. The system of common school education, which origi- 
nated in New England when the colony was a mere handful, has now 



chap. u.J OF FREE INSTITUTIONS. 265 



spread over nearly all the American states ; and has contributed more 
than any other cause to preserve the identity of the language, to ad- 
vance civilization, and to bind those republics together in a firm and 
beneficent union. When this system is introduced among a popula- 
tion of fifty or a hundred millions, it will present a spectacle from 
which the whole race of mankind will be able to derive instruction. 

It has been supposed, that government has properly nothing to do 
with the education of the people ; that it is an affair which concerns 
the private citizen exclusively, and does not fall within the province 
of the legislator. But the maxim, " laissez nous faire," must not be 
interpreted in such a way as to destroy its own value. The whole 
body of laws, the direct design of which is to promote the good gov- 
ernment of the community, the civil, criminal, and commercial codes, 
all interfere necessarily with the behavior of individuals ; yet, it is 
admitted, that they do not lie within the range of the maxim. I do 
not know that any precise line can be drawn between those actions 
which affect the public weal, and those which have a relation to pri- 
vate persons only. For as no system of legislation can avoid inter- 
fering to some extent with the conduct of individuals, so there is 
no scheme of private conduct but what may affect the whole commu- 
nity. It is not because there is any exact and definite distinction 
between the two classes of private and public actions, that government 
is bound to interfere in one instance, and yet to abstain in another. 
It depends upon who can most effectually and most advantageously, 
for both government and people, preside over the one and the other. 

Governments in many instances originated colleges, and other insti- 
tutions of learning and benevolence. Government first set on foot 
newspapers. By anticipating the existence of these important 
instruments of science and information, the time was hastened when 
the people appropriated them to their own use. There are some 
subjects which fall under the superintendence of government, in the 
early stages of society, which cease to belong to it when a people 
have risen up. And there are others, where the care exercised by 
government becomes more intense, in proportion as free institutions 
take root. 

There is one sure test which may be applied to all such questions ; 
one, however, which is not capable of being employed in any but a 
democratic republic. This test is afforded by the rule of the majority; 



266 



NATURE AND TENDENCY 



[book III. 



not the majority of to-day, or to-morrow, but the majority of a con- 
siderable series of years. We may be quite sure that if the people 
themselves agree that government shall undertake the management 
of a particular interest, and adhere to this agreement after long expe- 
rience of its effects, the arrangement is a wise and salutary one. It 
is possible for the majority temporarily to oppress the minority. But 
it is a much more difficult matter than is generally supposed, for it 
to persist in so doing. It is impossible in a country of free institu- 
tions, in a country where the electors number three millions, to 
present any such prominent distinctions in the circumstances of 
different classes, as to insure the rule of a fixed majority, if it is dis- 
posed premeditatedly, and of set purpose, to run counter to the 
substantial interests of the minority. Any such effort will forever 
terminate in converting the minority into the majority. It may 
frequently happen, that on the first proposition of a most wholesome 
and beneficial law, the minds of many men may be taken by surprise, 
and that it will require a good degree of reflection on their part to be 
convinced of its propriety. That the majority have agreed to it; 
that is to say, that a body of individuals, no way distinguishable in 
their habits and condition of life from the great body of the minority, 
have given their consent to a particular enactment, is strong "prima 
facie" evidence of its reasonableness ; and if this enactment remains in 
the statute book for a considerable period, it is almost conclusive 
evidence of its wisdom. I observe that at the present day, in New 
York, and in all of the New England states but one, there are laws 
prohibiting the sale of ardent spirits. One can hardly imagine a case 
where the interference of government with private conduct is more 
direct and imperative than it is here. But it is very difficult to con- 
ceive any case where private conduct is capable of exercising a deeper 
and more extensive influence upon the public weal. These laws have 
been too recently passed to enable us to say with certainty whether 
they will stand. I am disposed to think that ultimately they will 
prevail ; that although there may be fluctuations of public opinion, 
leading to their alternate repeal and re-enactment, they will in the 
end conciliate the minds of the great bulk of the population, and bear 
down all opposition. 

The difficulty, then, of distinguishing in theory between those 
things which the civil magistrate should take under his jurisdiction, 



CHAP. II.] 



OF FREE INSTITUTIONS. 



267 



and those which should be left to the discretion of private individuals, 
is resolved in practice by the simple rule of the majority. Where 
government is truly the representative of the people, we can afford to 
trust it with the doing of many things, which under other circum- 
stances it would be desirable to place beyond its reach. Where it is 
a self-existing authority, it is too prone to intermeddle with private 
conduct, it seeks to thrust itself into every corner of society, because 
its own influence is increased in proportion as the people are rendered 
dependent. But this is a mistake which can rarely be committed in 
a republic, where those who are affected by the laws are themselves 
the authors of the laws. 

It is remarkable that while Mr. Hume is in favor of a strict super- 
intendence of religious interests by government, that he would leave 
every other department of instruction to the voluntary and unassisted 
efforts of individuals. In America the rule has been entirely reversed. 
There, the people claim the interposition of their state governments, 
in securing a system of popular instruction, while they deny the 
right or the utility of interfering in any degree with religion. And 
this system has been attended with incalculable advantages to both 
government and people. It is the existence of an established church, 
which in England has opposed so many obstacles to the introduction 
of a system of popular instruction. A fear has been constantly felt 
by episcopalians lest, in that course of training and discipline which 
the minds of youth undergo at school, opportunity might be taken to 
instil notions unfavorable to the doctrines of the church of England ; 
while on the other hand dissenters of all denominations have taken a 
totally opposite view, and have concluded that there was even 
greater probablity, that principles adverse to their own particular 
creeds might be insinuated into the minds of their children. A sys- 
tem of common school education established in England, and headed 
by an ecclesiastical hierarchy, might have so many bad features as to 
counterbalance the good, of which it would be otherwise productive ; 
while the same system in America, originated by representatives of 
the people and superintended by them, would be frought with un- 
mixed advantage. A country in which free institutions are sought to 
be perpetuated, presents a strong case for the interposition of the 
government in everything which concerns popular instruction. The 
system of common school education is applied to the formation of the 



268 



NATURE AND TENDENCY 



[book III. 



mind, at a period of life when it is too feeble to originate any scheme 
of mental discipline for itself. And the great object is so to train 
the youth of the country, that when they come to be men, they may 
render themselves useful members of the great commonwealth in 
which they live. And it is a consideration of great importance, that' 
where the population of a country is well instructed, the interference 
of the legislator is unnecessary in a multitude of instances where it 
would otherwise be demanded. 

When education is widely diffused, the whole population is intro- 
duced into active and useful life, at a much earlier period than could 
be the case, if the means of instruction were limited, and difficult to 
be obtained. This necessarily constitutes an immense accession to 
the strength and resources of the state. The great body of the 
people then become not merely the bone and sinews of the community, 
they become its soul, and its vivifying principle. Lord Bacon, like 
Cicero, complains that men who have obtained a tolerably advanced 
age, are frequently withdrawn from public usefulness, when their in- 
fluence and counsels, would be most profitable to the public. This 
great man would not have had so much reason to indulge in this 
lamentation if, instead of the brutish and ignorant population by 
which he was surrounded in the beginning of the seventeenth century, 
he had lived in the midst of an instructed people. In the United 
States, a very considerable part of the business of society falls under 
the management of young men. The liberal professions, the legisla- 
tive assemblies, all the branches of trade, of manufactures, and the 
mechanic arts, derive immense accessions from their exertions. And 
it is perhaps one reason why all these pursuits have caught so liberal 
a spirit, and are freed from the cumbrous forms and antiquated usages 
which hang around them in other countries. The effect is similar to 
that which is produced by the substitution of free in the place of 
slave labor. General education imparts general freedom of thought. 
And this freedom of thought is the parent of vigorous exertion, of 
self reliance, of that thorough sense of responsibility, which causes 
every one to walk alertly and yet cautiously over the different paths 
of life. 

Until recently, no one was eligible to the French house of deputies 
until he was forty. This fact sheds an abundance of light upon the 
social organization in France. The laws are a pretty sure index of 



CHAP. II.] 



OF FREE INSTITUTIONS. 



269 



the manners, and where we find the age of political majority raised so 
high, we may be very certain that the age of civil manhood is also 
high, and that both the minds and characters of individuals are slow 
in maturing. In some countries, the hour glass of life is more than 
half run out before the faculties of men can be made available and 
effective for any part of the business of society. At present, the age 
of admission into the house of deputies is thirty years, and contem- 
porary with this alteration of the constitution, a great change took 
place in reference to popular education. Formerly, the government 
appropriated twenty-five thousand dollars for that purpose. At 
present twenty-five millions are granted. More than forty-two thou- 
sand schools are maintained by the state, the departments, and the 
cantons; while at the same time, the private schools have also been 
augmented. For although the laws are an index of the manners, yet 
in a country where a system of artificial institutions has existed for a 
very long period, government may notwithstanding originate the most 
important improvements, and thus bring about a change of the man- 
ners themselves. The whole number of pupils at school in France is 
very nearly three millions, and the cost of primary instruction alone 
is estimated at two and a half millions of dollars. 

In the United States, it is very common to see men, by the time 
they are thirty, already established in some useful and profitable em- 
ployment. At that age we see them conducting with judgment and 
ability an extensive practice as lawyers, or physicians, or embarked in 
the most difficult branches of trade. It is evident that such a con- 
stitution of society must contribute materially to augment both the 
moral and physical resources of the community, and that it must be 
equally instrumental in giving strength and solidity to the political 
institutions. 

Those persons who are prone to look upon the dark side of human 
nature, and to magnify the licentiousness of the present age, would 
derive great instruction from looking into the interior of society, as it 
was only one hundred and fifty years ago, and that among some of 
the most enlightened European states. The system of common, or 
parochial, schools was established in Scotland, in 1696. Fletcher, of 
Saltoun, the celebrated Scotch patriot, and a person eminently distin- 
guished for soundness of judgment and purity of character, writing 
about this time, draws the following vivid picture of the general state 



270 NATURE AND TENDENCY [book hi. 

of manners in that country. "There are at this day in Scotland 
(besides a great many poor families provided for by the church boxes, 
with others, who by living on bad food, fall into various diseases), 
two hundred thousand people begging from door to door. These are 
not only no way advantageous, but a very grievous burden to so poor 
a country. And though the number of them be perhaps double to 
what it was formerly, by reason of the present great distress ; yet in 
all times there have been about one hundred thousand of these vaga- 
bonds, who have lived without any regard or subjection to the laws 
of the land, or even to those of God, and nature : fathers incestuously 
accompanying with their own daughters, the son with the mother, and 
the brother with the sister. No magistrate could ever discover, or be 
informed, which way one in a hundred of those wretches died, or ever 
that they were baptized. Many murders have been discovered among 
them, and they are not only an unspeakable oppression to poor tenants 
(who if they give not bread, or some kind of provision, to perhaps 
forty such villains in one day, are sure to be insulted by them), but 
they rob many poor people who live in houses distant from any neigh- 
borhood. In years of plenty, many thousands of them meet together 
in the mountains, where they feast and riot for many days, and at 
country weddings, markets, burials, and other like public occasions, 
they are to be seen, both men and women, perpetually drunk, cursing, 
blaspheming, and fighting together." 

This state of abject poverty and wild disorder cannot be attributed 
to the density of the population. Scotland, at the close of the seven- 
teenth century, contained hardly a million of inhabitants. By the 
census of 1841, it contained more than two millions and a half. But 
at the former period, the Scotch were destitute of education ; desti- 
tute, therefore, of those moral capacities which could alone lay open to 
them the resources of nature. At present, they are among the best 
educated people in Europe ; and the condition of the country is totally 
changed from what it was when Fletcher wrote. In the place of a 
lawless band of marauders, traversing the country and inflicting all 
sorts of injuries upon unoffending people, we have, from one end of 
the country to the other, a shrewd, active, and industrious population ; 
the great bulk of whom possess a very reasonable share of the com- 
forts of life, and live in a state of strict subordination to the laws. 
Doubtless, we may find very great defects in the social organization of 



CHAP. II.] 



OF FREE INSTITUTIONS. 



271 



any country ; and the disposition to magnify these may even some- 
times be a favorable symptom of the general soundness of society. 
It may indicate that a very high standard of excellence is constantly 
held up by every one, which, although it can never lead to the attain- 
ment of all which is conceivable, yet is the only means of reaching so 
much as is actually attainable. But to make any comparison between 
the moral and industrial state of Scotland, in the seventeenth century, 
and its condition since the system of parochial schools has been ma- 
tured and borne its fruit, would be to forego the use of our faculties. 
We might as well institute a comparison between the annals of bed- 
lam, and those of New England or Ohio. 

What will be the effect, ultimately, of placing men so much on an 
equality as the general diffusion of knowledge supposes, is an inquiry 
at once novel and interesting. The great qualities which we admire, 
in the eminent men who take a lead in public affairs, are in very great 
part formed by their power of acting upon other men. But this 
power depends for its exercise very much on the structure of society. 
A state which contains a handful of intelligent and sagacious indi- 
viduals, all the rest of society being condemned to a state of intel- 
lectual inferiority, presents the most favorable opportunity for the 
development of those qualities. Men who are surrounded by the 
ignorant, feel a stimulus to exertion, in one walk of ambition at any 
rate, the force of which it is difficult to calculate. Under such cir- 
cumstances, they are inspired with a wonderful degree of assurance, 
resolution, and self command : mighty agents in counterfeiting as well 
as in making great qualities. But if we contrive to scatter know- 
ledge, and so to multiply the number of independent thinkers among 
the people themselves, much of this artificial stimulus to an artificial 
greatness is taken away. It becomes then a much more difficult 
matter to manage men ; less easy to control their wills, so as to render 
them subservient to the designs of ambitious leaders. In such a con- 
dition of society, the aspiring man sees a great number of sagacious 
individuals, not merely in the sphere in which he moves, but inter- 
posed between himself and the people, and in the ranks of the people 
themselves. His power is by little and little frittered away, until at 
la&t it becomes doubtful whether there will any longer be opportunity 
for the display of those qualities which have hitherto attracted so 
large a share of the public attention. 



272 



NATURE AND TENDENCY 



[BOOK III. 



And admitting that this will be the consequence, it is clear that 
society will be infinitely the gainer; not merely because qualities 
which depend so much for their formation on the ignorance of other 
men, must necessarily contain a great deal that is at once factitious 
and superficial ; but because the community as a body will be ren- 
dered wiser and stronger, and the political institutions be made firmer 
and more durable. 

There is one inconvenience attending society when knowledge is 
widely circulated ; and the principle of equality consequently gains 
strength — the feeling of envy is apt to pervade all classes of men. 
Every one seems to forget that although the dispersion of knowledge 
does in truth break down many of the distinctions which before ex- 
isted between individuals, that it cannot destroy the natural inequality 
which the Grod of nature has stamped upon different minds. Every 
one, however, fancies that he is capable of every thing. All want to 
be great, and yet are too indolent to make themselves wise. And as 
chagrin and disappointment must follow the indulgence of such vain 
hopes and pretensions, men instantly fall into the deplorable vice of 
detracting from the merit of those who have run before them in the 
attainment of reputation. If they cannot reach the object of their 
ambition, the next most desirable thing is to prevent others from ob- 
taining it. In a barbarous or half- civilized community, men slay each 
other to make room for themselves. In a highly- civilized one, they 
rarely go further than to wish the death of each other. 

But although this is to a considerable extent the character of 
every society where knowledge is diffused, and people are placed 
pretty much on a footing of equality; yet it is attended with so 
many compensations, that a wise man is not at liberty to desire a 
change. We must avail ourselves of every spring of improvement 
which is planted in human nature. If we cannot rely solely upon the 
noble ambition of excellence for its own sake, we may very reason- 
ably tolerate some other qualities of an inferior kind, provided they 
are productive of effects any way similar. Our nature is so admira- 
bly adjusted, that even our defects are often converted into instru- 
ments for our improvement. But there is this very important 
distinction to be made ; that we intend our virtues shall redound to 
the good of society, whereas we intend no such thing with regard to 
our vices. These are made to produce results without our knowing 



CHAP. II.] 



OF FREE INSTITUTIONS. 



273 



it, through the interposition of an overruling providence. Root out 
envy from the human bosom, and we take away one of the strongest 
incentives to all sorts of exertion, from the lowest, the mere acquisi- 
tion of wealth, to the highest, the perfectionment of our moral and 
intellectual nature. 

» In surveying the extensive provision which is made in America for 
the promotion of popular instruction, the inquiry may very naturally 
be made : what is to be the result of the plan if it is not turned to 
some account, reaching beyond the years of puberty ? The system of 
common school education gives the ability to read and write ; but the 
possession of this ability is one thing, and the application of it after 
leaving school is another and very different thing. In other words, 
even admitting that the whole youth of the country are taught those 
important arts, what will it profit them if, after the acquisition is 
made, it is not employed in getting knowledge. The ability to read 
and write is merely mechanical — it is only a means to the attainment 
of an end. If the means is possessed, and yet the end totally neg- 
lected, in what respect is society better off than when this mechanical 
art was entirely withheld from the general population. 

I imagine, however, that when the matter is considered attentively, 
the deficiencies of society will be found to be much less than this view 
supposes, and I have purposely placed it in the strongest possible 
light. It is true, when we take a survey of some of the best edu- 
cated communities, the United States and Holland for example, we 
are struck with the unintellectual character of the masses. But the 
fault is in ourselves : we compare the condition of these masses with 
that of the most cultivated class, instead of comparing it with the 
condition of those masses prior to the diffusion of education. In pur- 
suing the first course, we are disappointed, perhaps even shocked ; in 
adopting the last, we will find that our most sanguine expectations 
are realized. Reading and reflection, unless carried beyond a certain 
point, cannot be productive of what we term striking results; and 
yet when employed short of this point, they may have a decidedly 
intellectual influence. There is in reality much more read by the 
people than is generally supposed, only it is not visible to those who 
live in the full blaze of knowledge. The single fact, that a greater 
number of newspapers are circulated in the United States than in 
the whole of continental Europe, is pretty good evidence that the 



274 



NATURE AND TENDENCY 



[book III. 



Americans turn the ability to read to some practical purpose. The 
reading of the daily journals is an occupation to which the most accom- 
plished minds are addicted : for they contain, with all their demerits, 
a great part of the history of the times in which we live. They do 
not contain this information hut in the gross, as is the case in works 
professedly historical ; but they present the transactions and events of 
the day minutely, and in detail ; and although the narrative is on this 
account less imposing, it is doubtful whether it is not more instruc- 
tive. This species of reading, although it produces in some a disrelish 
for any other study, has a contrary effect with others. It whets the 
appetite for knowledge, opens up the connection between those things 
which are contained in the newspapers and the ten thousand other 
things which can only be alluded to by them. A great many persons 
among the mechanical, agricultural, and commercial classes, are thus 
beguiled into habits of reading, who would never otherwise have 
taken up a book. Newspapers first created a general taste for read- 
ing : and reading is of great assistance in grasping and analyzing the 
information which newspapers contain. The profitable use which may 
be made of these journals, is in exact proportion to the general stock 
of knowledge which individuals possess. Facts related by them, 
which a casual observer would pass over as signifying nothing, may 
with minds of reading and reflection possess a great deal of meaning, 
and conduct to very important conclusions. 

The system of popular education has many negative advantages 
which are not inferior to the positive benefits which it bestows. The 
training of the hearts of youth is very properly confided to the do- 
mestic circle ; but intellectual occupation, the acquisition of the mere 
rudiments of learning, exercises a decidedly moral influence upon the 
character. If it only to some extent shuts out the temptation to 
vice, it prevents the lower appetites from gaining the mastery. 

In Sismondi's History of the Italian Republics (iv. 193), we have 
some insight into the state of popular education in the republic of 
Florence, in the fourteenth century. The city then contained one 
hundred and fifty thousand inhabitants. In the territory beyond the 
city, there were about seven hundred thousand. From eight to ten 
thousand children learned to read, twelve hundred learned arithmetic, 
five or six hundred, logic, or grammar. In Scotland, at the present 
day, one eleventh of the whole population go to school. In New 



CHAP. II.] 



OF FREE INSTITUTIONS. 



275 



England, and New York, this proportion is about one fourth, or one 
fifth, in other words, three fourths of the children, between five and 
fifteen years of age, go to school. The proportion then in Florence, 
which was greatly advanced beyond any of the other Italian states, 
in this, as well as in every other respect, was surprisingly small. It 
was only about the eightieth part of the population. It is exceedingly 
small, even when compared with England, where one in nineteen, or 
with Ireland, where one in thirty- two of the whole population, are 
trained to the first rudiments of education. 

The moral influence exerted upon society in these different commu- 
nities, has been in about the same proportion as the diffusion of 
education. It was less in Florence than in Ireland, less in Ireland 
than in England, and in England less than in Scotland, New England, 
or New York. The register of crimes shows this fact very conclu- 
sively. The number of criminals in Ireland is about one in five 
hundred, in England, one in nine hundred and sixty, in Scotland, 
New England, and New York, out of the city, one in about five thou- 
sand. We have no materials from which to form any exact calcula- 
tion as to Florence. But we do know that it contained an exceed- 
ingly disorderly population, and that it was a scene of the most 
sanguinary civil feuds, during the period to which I have referred. 
The riots of an American city are a mere episode in the history of 
the country; those of Florence were barbarous in the extreme, were 
fomented by the chief citizens, and were of so frequent occurrence as 
to constitute the principal part of its annals. 

There is still a difficulty, however, connected with this subject, 
which demands attention. All the people cannot be expected to be 
educated. Even admitting, that with the munificent provision which 
is made for the establishment of schools in New England, New York, 
and Ohio, all the males receive the first rudiments of learning, it would 
be going too far to suppose that all will get much further than those 
rudiments, and become well informed. We will probably have in 
those sections, and ultimately throughout the whole country, a better 
instructed people than have ever existed. But very many will still 
remain wrapped up in ignorance. The number of the electors then will 
be much greater than that of the educated. Whereas, the theory of 
democratic institutions seems to require that all who exercise the right 



♦ 

276 NATURE AND TENDENCY [book hi. 



of suffrage, should be at least tolerably instructed. In other words, 
the administration of public affairs in America, both in the federal 
and state governments, gives rise to a multitude of questions of great 
magnitude and complexity, which cannot be understanding^ appre- 
hended without information and reflection. Nevertheless, the people 
are either directly or indirectly invested with the whole power of de- 
ciding upon these questions ; and yet, numbers are very ignorant in 
relation to them. How are we to reconcile this plain discrepancy, 
between the demand for knowledge on the one hand, and the lack of 
it on the other ? The difficulty is startling at first view. It is one 
which has constantly exercised the minds of the most thoughtful and 
judicious men in the United States. 

In the first place, then, it must be recollected that a like analogy 
runs through every department of human affairs ; that political know- 
ledge is like every other kind of knowledge ; that it is subject to the 
same rules which apply to all other human interests ; and that if a 
slight observation does disclose the strangest incongruities, greater 
attention will reveal a system of compensations, by which the mischief 
is in a great degree neutralized. In the whole circle of human in- 
terests, there is hardly an instance where theory and practice are 
united to any great extent. It is one of the most striking and benefi- 
cent provisions in the constitution of our nature, that the combination 
of the two is not always necessary, in order to act efficiently and cor- 
rectly : that on the contrary, our conduct may be determined with 
the utmost promptitude and regularity, without our being able to an- 
alyze our thoughts ; that is, without our comprehending the process 
by which we are impelled to act. The commonest laborers will skill- 
fully apply all the mechanical powers, without understanding their 
nature. Millions of men are engaged in the processes of manufac- 
tures, without any insight into the world of knowledge of chemistry 
and natural philosophy, which their occupations seem to imply. Many 
'who successfully and skillfully pursue the professions of law and med- 
icine, are unacquainted with the philosophy of those sciences. There 
are no subjects upon which a greater amount of thought and learning 
have been employed, than upon theology and ethics ; yet the religious 
and the moral are to be found among the unlearned as well as among 
the enlightened. The analogy may be traced through every interest 



CHAP. II.] 



OF FREE INSTITUTIONS. 



277 



appertaining to human life. Indeed, if the ability to act were de- 
pendent upon knowledge of the machinery by means of which we act, 
our condition would be more deplorable than that of the brutes. 

It is worthy of observation, also, that on all the important questions 
which agitate a civilized community, a wide difference of opinion ex- 
ists among the enlightened, as well as among the uninstructed. The 
utmost which we can reasonably demand is, that public affairs should 
be conducted by those whose vision is the keenest and most compre- 
hensive, and whose intentions are the most upright. 

But even such minds are constantly ranged upon different sides. 
Perhaps the difficulty is more apparent than real. It may be that 
it is the egotism and narrow views of politicians, which give an im- 
portance to questions to which they are not entitled, and that those 
who are uninstructed, by being less ambitious, and consequently more 
impartial, serve to moderate the ultra views of politicians of all par- 
ties. A great nation may do great injustice to itself, by imagining 
that its substantial interest's are dependent upon the existence of a 
central bank, or the enactment of a high tariff. Public men feel as 
if they must have a wide field opened, on which to make a display of 
their abilities, and such questions present the opportunity, although 
the advancement of the country in riches and power would not be 
sensibly affected one way or the other, whether such schemes were 
adopted or discarded. 

But although the difficulties which beset free institutions are great, 
it is plain that there is no way of elevating the great mass of the 
population, but by disseminating the benefits of education. If the 
mischiefs complained of are not cured, they are at any rate greatly 
abridged. The question is not, whether the social organization, and 
the political institutions of a representative republic, are preferable to 
such a picture as our imaginations may draw ; but whether they are 
not the best which we can reasonably hope to attain ; whether they 
do not present a state of society infinitely better than that of Spain, 
Italy, or Russia; better even than that which exists in Great Britain, 
where the laws and the manners have a fairer aspect and a more 
wholesome influence than in any other European state, only because 
they approach nearer to the model which the American commonwealth 
has set up. 



278 



NATURE AND TENDENCY 



[BOOK III. 



CHAPTER III. 

MILITARY INSTITUTIONS. 

There is no fact in the history of our race more striking than its 
addiction to military pursuits. From the earliest period, and in every 
form of society, whether barbarous or civilized, war has been one of 
the habitual occupations of mankind. It might almost be supposed 
that it answered some necessary want of our nature, and that the pro- 
pensities which lead to it were as much entitled to be considered a 
part of the regular constitution of man, as any of those which rule 
over his ordinary actions. 

The least insight into human nature, apprises us of the great va- 
riety of faculties which are planted in our constitution. Qualities 
which tend to raise the species to a condition almost above humanity, 
are immediately associated with others which sink it to a level with 
the brutes. And it is plain that if the former were not capable of 
exerting a control over the last, the human mind would be a mere 
jumble of contradictory properties, each acting with the force of a 
separate instinct, and giving rise to actions the most incoherent and 
unmeaning imaginable. 

It is true, war is sometimes productive of beneficial effects. In the 
absence of any more powerful stimulants, it scourges the lazy elements 
of society, brings to light some dormant spring of improvement, and 
gives a totally different direction to human affairs from what was inten- 
ded. If our bad qualities are not controlled by ourselves, a higher 
power has ordained that they shall be instrumental of good in some 
other way. By rendering it necessary for individuals to act under 
circumstances of the greatest peril, and amid the most deplorable 
calamities which can fall upon society, war calls out some of the 



CHAP. III.] 



OF FREE INSTITUTIONS. 



279 



noblest qualities of our nature ; inspiring some with a lofty patriotism 
and self denial, and training others to humility, resignation, and forti- 
tude. If conquering Rome had not penetrated a great part of Europe, 
and if the hordes from the northern and central part of that continent 
had not in turn penetrated Italy, it may be doubted whether civili- 
zation would have made much progress, up to the present day, beyond 
the confines of the Italian peninsula. Christianity and Roman 
civilization lie at the foundation of our modern civilization ; and I do 
not see how it would have been possible to diffuse one or the other, 
if there had not been that complete mingling of races consequent 
upon the Roman conquests, and the irruptions of the barbarians. I 
believe, that if it had not been for those events, the inhabitants of 
Britain, France, Germany, and Prussia, would have continued, down to 
the present time, the same wandering and barbarous tribes which 
they were in the times of Caesar and Tacitus. That there was no 
spring of improvement within, is demonstrated by the fact that they 
had remained in a stationary condition for more than two thousand 
years. If then there had not been some powerful causes set in 
motion from without, there is- every reason to believe, that those 
countries which have made such prodigious advances in knowledge, 
and in all the arts of life, would still be inhabited by an ignorant and 
barbarous race. 

The subsequent wars which have prevailed among the European 
states, have probably contributed to produce an effect of a similar 
character. Doubtless the guilty individuals who fomented them were 
only animated by a desire to gratify their selfish ambition ; and they 
have been subservient to ends which they neither desired or con- 
templated. I will only take as an example the wars which scourged 
Europe, from the commencement of the French revolution to the 
general peace in 1815. Assuredly no one can take a survey of Eu- 
ropean society before and since that period, without noticing the 
immense progress which has been made in knowledge, industry, and 
the arts, and the corresponding improvement which the social and po- 
litical organization has undergone in that quarter of the globe. 

The influence which these wars have exerted, is similar to the effect 
produced in the United States by breaking down the distinction of 
ranks. Civilization has circulated more freely in consequence of the 
last, and the wars of the French revolution, by contributing to break 



280 



NATURE AND TENDENCY 



[book III. 



down the barriers which separated the European states from each 
other, have brought the inhabitants of all to a more intimate acquain- 
tance and connection than existed before. The* intercourse of all 
kinds which now takes place, political, commercial, and personal, 
between different communities, is greater than it once was between 
the people of the same country. Civilization is contagious ; the 
manners of a cultivated people exercise an amazing influence upon 
others which are less advanced, and tjie European nations, which were 
once distinguished by the greatest inequalities in this respect, are 
gradually assuming the character of one great commonwealth of 
civilized states. 

These views conduct to others equally important. Historical 
works which, for the most part, contain a narrative of foreign and 
intestine wars, would have been doubly instructive if their authors 
had constantly drawn the attention of their readers to the difference 
of races. I imagine it would be found that this difference lay at the 
bottom of nearly all those wars. China, whose population is greater 
than that of all Europe, has, with very inconsiderable exceptions, 
enjoyed profound tranquillity for more than two hundred years. 
During the same period, the European people of the same country, as 
well as of different countries, have been tearing each other to pieces. 
Let us take as an example a single historical work : Sismondi's His- 
tory of the Italian Republics. What a flood of light would this 
profound and eloquent writer have shed upon the times of which he 
treats, if he had throughout the whole work directed the attention of 
his readers to the original diversity of races, and to the very slow 
process by which they were fused into each other. The mixture of 
Goths, Vandals, Lombards, Normans, and Saracens, with the Italian 
population, produced a total disorganization of society, and made men 
of the same district, and even living within the walls of the same city, 
implacable enemies. I have no reference now to the times immedi- 
ately succeeding the invasion of those hordes; for then it is plain 
enough, without the historian pointing to it, that the incongruous 
assemblage of peoples of different civilization was a fruitful cause of 
disorders. I allude to periods much later, to the twelfth, thirteenth, 
and fourteenth centuries, when the descendents of all these various 
races inhabited Italy, and when, notwithstanding intermarriages 
between them, the original lineaments of character had not dissap- 



CHAP. III.] 



OF FREE INSTITUTIONS. 



281 



peared. The same view might be taken of the intestine troubles of 
Spain, France, and Great Britain. We know that it is not much 
more than one hundred and fifty years since the Saxon and Norman 
population, in this last country, could be considered as completely 
amalgamated; and that the amalgamation of the Gaelic population of 
the highlands of Scotland with that of the rest of the country, dates 
from a much more recent period. 

This suggests another important view, which is, that in proportion 
as the various races have been melted into each other in the same 
country; in proportion as they have tended to form one homogeneous 
population, the character of war became gradually changed. The 
different people no longer inhabited the same country, but belonged 
to different countries. Hence in very modern times, instead of do- 
mestic wars we have had foreign wars. The extraordinary uniformity 
of character in the population of the United States, has undoubtedly 
been one great cause of the unprecedented tranquillity it has enjoyed 
at home. It is not merely that this sameness of character presents 
fewer points of actual difference, but it has led to a thorough inter- 
course between men of all classes, and between those inhabiting 
different parts of the country; 

No nation is composed of a greater variety of races than the United 
States. But the English type is predominant above all others. The 
emigrants who flock thither are from the most civilized parts of 
Europe. Although for the most part they belong to the inferior 
classes of society, their minds are more ductile on that very account — 
more capable of receiving impressions from the manners and institu- 
tions which surround them. They behold a high standard of civili- 
zation existing in the country. Their natural instincts impel them to 
imitate it ; since in no other way can they compete with the native 
inhabitants in the acquisition of comfort and independence, The 
older emigrants adhere to their own language. After a certain period 
of life, it is difficult and irksome in the extreme to learn a new lan- 
guage. But their descendents do not find the same difficulty. Their 
dispositions and organs are more pliable. The intercourse between 
all parts of the population is so great, that they insensibly acquire the 
language of the country, and learn to regard that of their ancestors 
as a foreign tongue, which is now both useless and unfashionable. 
This obstacle being surmounted, intermarriages take place. Their 



282 



NATURE AND TENDENCY 



[book III. 



transactions of business lie with the natives, much more than with 
their own countrymen. American courts are opened to them, when 
they have any difficulties to adjust. They must converse with their 
lawyers in English, in order to make themselves understood. Their 
interests, no less than a desire so natural to the human heart, to imi- 
tate those who have wealth, power, and intelligence, conspire to weld 
them thoroughly to the institutions among which they live. So that 
in process of time the English type promises to "be not merely the 
predominant but the universal one. 

The distinction of race may be regarded in a two-fold aspect ; as it 
arises from physical or moral causes. When we speak of difference 
of race, we generally have reference to some variety of conformation 
and habits which has been wrought by physical causes. But there 
may be a difference superinduced by moral causes. For instance, 
independently of the varieties which have been noticed by philo- 
sophical writers, the political institutions of different countries may 
differ so widely from each other in their structure and influence, as 
to render nations who have sprung from the same stock, as alien to 
each other as if they had emerged from totally distinct tribes. And 
so also, the institutions of the same country may act so unequally 
upon different parts of the population as to create great diversity of 
habits, manners, and modes of thinking; and so to estrange from 
each other men inhabiting the same country. It is in the power of 
governments then to create artificial races among their own popula- 
tion. Monarchical and aristocratical institutions, together with an 
imposing ecclesiastical hierarchy, may contribute to perpetuate dis- 
tinctions long after the original lineaments of race have disappeared. 
So long as this is the case, the seeds of intestine war exist; and 
whatever foments intestine war, acts in one way or another as a pro- 
vocative to foreign war. Soon after the breaking out of the French 
revolution, the party in the ascendancy waged war against some of 
the European governments, in order to prevent their interference in 
re-establishing the odious privileges which divided one part of French 
society from another. And when strong government was established, 
war was still waged in order to keep down the insubordination of men 
of all parties at home. 

There is one part of the policy of the American government which 
is entitled to great praise. I allude to the laws for the naturalization 



CHAP. HI-] 



OF FREE INSTITUTIONS. 



283 



of foreigners. I will not stop to inquire into the propriety of a little 
shorter or a little longer residence, in order to entitle to citizenship. 
The main design of the plan, which is that of a speedy naturalization 
of foreigners, is marked by the soundest wisdom. These laws have 
been regarded as something entirely new in the history of govern- 
ments. And it is true that they do differ materially from the laws which 
exist in the European states. But they are pretty much the same as 
those which prevailed prior to the establishment of American indepen- 
dence. Similar laws were passed by the mother country, for the pur- 
pose of encouraging emigration to a country which had a vast extent 
of fertile land, and too few inhabitants to cultivate it. America, 
although its population is now greater than that of many of the 
kingdoms of Europe, has still an abundance of unoccupied land. 
The same reasons therefore which lead to the original enactment of 
these laws would prompt to their continuance. 

But without denying that these laws offer strong inducements to 
emigration, it is doubtful whether the emigration would not be nearly 
as great without them. The immediate temptation to the inhabitants 
of densely-peopled countries to emigrate, arises from the prospect of 
bettering their condition. The desire to become proprietors when 
before they were serfs, to acquire comfort and independence, and 
so to raise their offspring reputably, when otherwise they would have 
been sunk low in the scale of society ; not to mention the absolute 
cravings of want among great numbers, which make them satisfied 
with merely wages sufficient to uphold life ; all these motives conspire 
to bring great crowds of people to the new world. Although they 
might not be admitted to the possession of political privleges for 
fifteen or twenty years after their arrival, they would enjoy freedom 
of religion, and a larger share of civil liberty than falls to the lot of 
any European people. 

But it is of infinite importance to assimilate as speedily as possible 
all parts of the American population : to melt down all the different races 
into one race ; and thus to produce the greatest harmony and agree- 
ment between the manners and the political institutions. This is a 
more powerful and convincing reason for the enactment of the natu- 
ralization laws of the United States, than would be the mere desire 
to encourage emigration. Examine all history from the earliest re- 
cords down to the present time, and it will be found that the presence 



284 



NATURE AND TENDENCY 



[book III. 



of different tribes in the same country, and yet separated from each 
other by unequal privileges, and consequently by dissimilar habits, has 
been the most fruitful source of internal dissensions and civil disturb- 
ances. We know that the Roman patricians and plebeians were not 
originially different classes of the same people ; but that they were in 
reality two different people : that they assumed the relation of dif- 
ferent classes, only in consequence of the laws which kept them 
asunder after they were incorporated into one commonwealth : and 
that Rome enjoyed no tranquillity until the laws were repealed. 
When this was effected the two people were easily melted into one, 
and a character of unity and solidity was imparted to the political 
institutions If you traverse Italy, or Germany, you will find vestiges 
every where of the same policy which guided Rome in its infancy. A 
close examination would probably disclose many traces still unobliter- 
ated of similar laws growing out of similar circumstances, in almost 
all the large kindoms of Europe. It was therefore a fine idea of the 
American government to begin at the beginning — to take speedy and 
effectual measures for fusing into one the diverse tribes of which its 
population would be composed. A monarchy, or aristocracy, may 
suppose that it is greatly for its interest to impose severe restrictions 
upon its foreign population, or even to make aliens of one part of its 
native population, as has been too often the case. But a republic is 
deeply concerned in smoothing as far as practicable all the inequalities 
and unevennesses which obstruct the intercourse of society; that so 
the political institutions may be adapted to the whole people, and 
the whole people be made heartily interested in upholding those 
institutions. 

Great numbers of people who now emigrate to America are catho- 
lics, and fears are entertained lest they should exercise an untoward 
influence upon the rest of the population. But these fears are with- 
out foundation. The institutions of the United States will protest- 
antize the Roman catholic religion, for protestantism is a vigorous 
protest against both religious and political superstition, and whatever 
contributes to check the one contributes equally to check the other. 
Maryland was settled by catholics, yet it is certain that the protestant 
population have exerted a much more powerful influence upon them 
than they have exerted upon the protestants. I can observe no 
difference in the manners and modes of thinking of the people of this 



chap, in.] 



OF FREE INSTITUTIONS. 



285 



state from what I observe in other states. So true it is, that in every 
thing which addresses itself to the reason, the true policy of govern- 
ment consists in permitting the utmost latitude of thought, and the 
freest exercise of conscience. To pursue an opposite course, would 
be to fill a country with dissensions, perhaps civil war, which has 
hitherto enjoyed unparalleled tranquillity. 

The risk which America has to encounter, in the absence of those 
causes which ordinarily produce heartburnings and jealousies in other 
communities, arises from the institution of slavery. There is no 
danger of any serious and lasting contest between the white and the 
black race. But it is possible, for the white man of the north to 
fight the white man of the south, through the black race. Such is 
the perversity of human nature, that it will sometimes create differ- 
ences where nature has made resemblances, and a diseased imagina- 
tion may convert the white man of the south into a being of different 
race, in order to enable him of the north to indulge in a misguided 
fanaticism. 

But the security against this danger is after all very great. It 
consists in the substantial identity of the white population of the 
north and south, which, although a gust of feeling may occasionally 
obscure the horizon, will force itself upon the attention of every one, 
and cement the two sections of the country, until the natural period 
of their separation has arrived. A certain degree of zeal, of even 
enthusiasm, is always necessary to set the mind a-thinking, and to 
enable it to apprehend the bearings and consequences of any impor- 
tant measure. It must never be supposed, because passion and feeling 
mingle in public disputes, that they are going to run away with the 
understandings of people. That passion and feeling only act as a 
healthful stimulus to the faculties, and by producing greater intensity 
of thought, may ultimately conduct to conclusions very different, 
perhaps totally the reverse of those which were at first seized. There 
is a species of intelligence, which is bottomed upon good sense and a 
sound judgment, which is eminently unfavorable to an over indulgence 
in fanaticism. And there are no people who as a body are more 
distinguished for this same intelligence, than are the people of the 
north. 

The reader may suppose that I have lost sight of the subject on 
which this chapter professes to treat. Such is not the case however. 



286 



NATURE AND TENDENCY 



[book III. 



But it is my desire to present a different view from what is usually 
taken. In other words, it is no part of my design to describe either 
the military institutions of any particular country, or to make inquiry 
what system would most conduce to promote the power and aggran- 
dizements of a nation. My object is the reverse: it is to examine, 
very briefly, those causes which have hitherto given rise to foreign 
and civil wars, and more especially to consider that train of events, 
and that constitution of society, which at the present day give 
promise of checking the propensity to war. For although war may 
have its uses, yet these uses may in the progress of time be ex- 
hausted. Not that there is any probability that wars will absolutely 
cease to be waged by nations, but the tendency of public opinion 
every where is such as to discountenance the practice. Not only do 
the interests of communities impel them in an opposite direction, but 
what is of infinitely more consequence, the understanding, the con- y 
viction that such is the case, is continually gaining strength. Foreign 
wars, so far as they are occasioned by the unequal civilization of 
different states, may become less frequent, when civilization is more 
evenly diffused ; not because the power of different nations will then 
be more equally balanced, for the reverse may be the case; but 
because a more equal civilization in all, produces a superior civilization 
in each, and a high state of civilization, such at any rate as exists in 
our modern world, is absolutely incompatible with the habitual pursuit 
of war. So also civil wars may become much less frequent, in conse- 
quence of the more thorough civilization which will exist among the 
population of the same state. For then the interests of different 
parts of the state will some how or other be found to be better 
adjusted to each other, and will more seldom be brought into violent 
conflict. 

If hitherto, appeals to the humanity and good sense of nations 
have been insufficient to put an end to the atrocious practice of war, 
a train of causes may be set in operation by the Governor of the uni- 
verse, which will accomplish the same end. The people of Europe 
may at least be made to see, and to feel, that their interests are iden- 
tified with peace ; and as the control of popular opinion upon the ac- 
tions of the government is continually gaining ground, the same sense 
of interest which disinclines the people to war, may disable rulers 
from making it. 



CHAP. III.] 



OF FREE INSTITUTIONS. 



287 



When these causes have been in operation for a considerable 
period, when the wisdom which is learned from experience has had 
time to produce some sensible alteration in the habits of thinking 
prevalent among men, the moral sense will be powerfully and effec- 
tually awakened. It is amazing with what facility the human mind 
will reconcile itself to customs the most abhorrent to reason, and the 
most revolting to humanity ; and it is equally surprising how easily 
it may be weaned from them, when new circumstances have arisen to 
produce a clear judgment and a sound state of feeling. For in what 
respect does the killing in war — in war which is not absolutely in self 
defence — differ from private murder, except that in the former case a 
great multitude of people have leagued together to do the deed, and 
by so doing, have organized among themselves a species of public 
opinion, in order to drown remorse and to absolve from condemnation. 

An almost total exemption from war is one of the memorable things 
in the history of the American republic. One war, of short duration, 
in a period of nearly seventy years, is a phenomenon without a parallel 
in the history of European society.* It is true, America is removed 
to a distance from the great theater of modern wars. But the vast 
countries of South America are near at hand, and present an arena 
for warfare much more tempting to that sort of cupidity, which for- 
merly impelled both people and governments to fall upon the weak 
and defenseless, in order to aggrandize themselves. Rome, when it 
made war upon all the nations of Italy, was a more unequal match 
for them, than the United States would be against all South America. 
But Rome and the United States have been placed in very different 
periods of the world. 

But whatever may be the causes which have produced so marked 
and so general a disinclination to war among the American people, 
it was of the greatest importance that the experiment of peace, as a 
part of the permanent policy of a state, should be fairly made. The 
experiment has proved that an abstinence from military pursuits, is 
not only consistent with the highest civilization, the greatest national 
power, and the most enduring prosperity, but that it contributes 
directly and powerfully to the furtherance of these ends. It has 
proved that the passion for war bears no resemblance to any one of those 



* The Mexican war has occurred since this was written. 



288 ^ NATURE AND TENDENCY [book hi. 

natural instincts which are planted in the constitution of man for the 
purpose of stirring up and quickening his higher faculties, and that 
it may be easily counteracted by principles which possess much greater 
force. • 

The true secret of the steady adherence to a pacific policy on the 
part of America, is to be found in the inconsistency of any other pol- 
icy with the maintenance of free institutions. The moment it was 
determined to establish a republican form of government, it became 
necessary to throw away military pursuits. For war is the most 
effectual instrument which can be employed to undermine public 
liberty. 

But even though we should admit that the policy pursued by the 
United States is attributable to the peculiar position in which it was 
placed, the example may be of unspeakable importance in its influence 
upon other nations. An experiment made under one set of circum- 
stances may suffice to show that it may be made under all circum- 
stances. For the circumstances are a mere accident, while the exper- 
iment itself is conformable to the interests of every civilized nation 
on the globe. 

A new state of things seems to be growing up in the European 
world ; not to be sure so variant from the old as to entitle us to 
calculate upon some tolerable approach to it, sufficiently so to show 
that the tendency to peace is one of the predominant characteristics 
of the present age. 

First, then, I observe that since the peace of Paris, which closed 
the unexampled wars of the French revolution, princes have made 
efforts such as have never before been known to cultivate a good 
understanding among themselves. It is immaterial whether this 
combination has been formed for the purpose of checking the progress 
of the democratic principle, so visible every where. Princes very often 
intend to do one thing ; and the course they are compelled to pursue 
insures the accomplishment of another and totally different thing. 
The fact that such a concert does exist is inconsistent with the con- 
tinual wars which once prevailed in that part of the world. And if it 
is adhered to for another thirty years, by the principal European 
powers, it may eventuate in very important consequences. It has 
created a counter revolution to the French revolution : and this coun- 
ter revolution only stands in need of time, in order to render it 



CHAP. III.] 



OF FREE INSTITUTIONS. 



289 



successful. For in the second place, the democratic principle, 
instead of losing, is constantly gaining ground. Crowned heads 
are afraid of their subjects, and combine in order to secure their 
own authority ; and the steady growth of industry and popular intel- 
ligence, which is the consequence of this pacific policy, is all the time 
adding to the moral power of the people, and placing in their hands, 
instead of in those of their rulers, the means by which alone peace 
can ever become the permanent policy of Europe. For, in the third 
place, the prodigious impetus which has been given to every depart- 
ment of industry within the last thirty years, is directly calculated to 
render the middle class the predominant class in society. When it 
has fairly become so, the disinclination to war will be nearly as mani- 
fest as it is in the United States ; not perhaps because the people of 
one period are intrinsically better than those of another, but because, 
in the vehement and obstinate pursuits of their own interests, they 
have become insensibly inured to habits of peace, and realize what 
the mass of an European population was not formerly in a situation 
to do, the importance of making peace the fundamental policy of the 
state. 

When the embargo was laid by the American republic in 1806, it 
was for the first time authoritatively announced to the world that 
war is inconsistent with the prosperity of a free state. And when in 
1833 the industrious classes in France protested against war with the 
United States, it was for the first time authoritatively announced by 
an European people, that it is inconsistent with the interests of even 
a monarchical state. Military pursuits then are irreconcilable with 
the highest degree of national prosperity. War contributes to alter 
the relative distribution of both property and power. It takes pro- 
perty from the industrious classes in order to bestow it upon a very 
different order of men : or what is worse, it causes the destruction of 
wealth without any retribution whatever. I know of but one instance 
which seems to form an exception to this view. During the wars 
which grew out of the French revolution, Great Britain did not appear 
to suffer materially. On the contrary, there were evident symptoms 
of a regular advance in wealth. Every department of industry was 
alive and active. The maritime ascendency of the nation enabled it 
to open new channels of commerce, and to protect its vessels in almost 
every quarter of the globe. This is the favorable view of the subject. 
19 



290 



NATURE AND TENDENCY 



[BOOK III. 



But the true question is, what would have been the condition of the 
country, if the expenses of the war had been defrayed by taxes col- 
lected within the year? Instead of this being done, a debt has 
been created so overwhelming, that no one dare believe that it will 
ever be paid; and which, whether it be paid or not, will equally post- 
pone the disasters of the war to a period far beyond its termination. 
For if, on the one hand, a national bankruptcy will dry up the income 
of great multitudes of people; on the other, the reimbursement of 
the debt will trench so largely upon capital, as to shake to its founda- 
tion the commercial prosperity of the country. When either of these 
events occurs, we will be able to form an adeqate idea of the influence 
of war in disturbing the natural distribution of property. 

Similar views are applicable to the question of the distribution of 
power. Property and power are invariably connected. Whatever 
affects the disposition of the first, affects that of the last ; whether as 
between different classes of the people, or as between the people and 
the government. War, more than all other circumstances put 
together, assists to condense power in the hands of a few. Its effect 
upon the distribution of power is more immediate and decisive, than 
it is upon property. 

It is not difficult to follow the process by which this revolution is 
effected. Impending danger, at home or from abroad, may alarm the 
mass of peaceful citizens, but it inspires the ambitious with resolution 
and boldness. If the crisis is at all doubtful, if either civil or foreign 
war seem to be brooding, a vague sense of patriotism persuades people 
that it is right to confer ample power upon government, to beat down 
the evil, and a large military force is raised. But the use of this 
instrument, where liberty is not most solidly guarded, is apt to give 
an exorbitant authority to the government. The imaginations of the 
people are intoxicated by the pomp and circumstance which are intro- 
duced upon the theater of public affairs. They lend a disproportioned 
importance to those who are the principal actors, and are led, step by 
step, to intrust a larger and larger authority to public rulers. The 
army becomes an end instead of a means; war is provoked when 
peace might easily have been maintained. And ■ whether in conse- 
quence of the altered modes of thinking which every one then adopts 
as to the general tendency of war, or through the instrumentality of 



chap, nr.] 



OF FREE INSTITUTIONS. 



291 



the army itself, the way is prepared, if not for the conquest of the 
people, at any rate for greatly abridging their liberties. 

It is not surprising, therefore, that the great mass of the American 
people should feel such an aversion to war. There is no instance to 
be found, where this sentiment has been any thing like so general or 
so strong. The nation no sooner goes to war, than it sets about 
framing expedients by which to obtain peace. It is not from fear of the 
enemy, for no country possesses both the "materiel" and "personnel" 
of war to a greater extent. But the nation fears itself, and would 
put away the temptation to acquire a dangerous greatness. Hitherto 
the disinclination to military pursuits has been so great among all 
parties, that it is not easy to form an estimate of the consequences, 
if there should be any thing like a general change in the tone of 
public sentiment. Military men have been bred in civil pursuits, or 
have lived during the greater part of their lives in a state of profound 
peace. Their character consequently partakes more of that of the 
citizen than of the soldier. If they are introduced into political life, 
they find themselves entangled in the complicated net work of our 
free institutions, and the last thing which a soldier president dreams 
of, is to employ the army for the purpose of perpetuating his power. 
But let public opinion run for any considerable period in an opposite 
direction, let military pursuits become more popular than trade, agri- 
culture, and manufactures, and I, for one, would desire to hide myself 
from contemplating the countless evils which would be the conse- 
quence. For as no nation ever was endowed with such a capacity for 
doing good: none has ever been endowed with such a capacity for 
inflicting evil. 

It is impossible to foretell with any accuracy, what will be the issue 
of those immense political assemblages which are constantly held in 
every part of the United States. The effect may be to discipline two 
vast armies, which will ultimately take up arms and tear each other 
in pieces. The experience which we have had of domestic violence in 
some of our large cities, proves that it would not be an impossible 
thing to embroil parties to such a degree, as to occasion the most 
disastrous civil wars. On the other hand, the people may become so 
familiarized to peaceful assemblages, and so habituated to reflect upon 
the wide-spread ruin which would be the consequence of a resort to 
arms, that the greatest political excitement may always terminate, as 



292 



NATURE AND TENDENCY 



[book III. 



it has hitherto done, in merely affecting the ballot box. On the issue 
of this experiment are suspended the destinies of this great republic. 

Nothing is more common than to see politicians pursue a line of 
conduct which they intend shall advance their own influence and au- 
thority, and which, nevertheless, terminates in setting bounds to both. 
What the leaders of parties often design to effect, by these political 
meetings, is to promote their own selfish aims : to obtain office imme- 
diately, or to prepare the way for their elevation at the first favorable 
moment. If endowed with ambition, resolution, and self command, 
they may be disposed to wink at the most offensive conduct on the 
part of their adherents, in order to bring matters to extremities. By 
embroiling the two parties in a civil dissension, they would render 
themselves more necessary to their respective partizans. But the 
course which they are insensibly impelled to pursue, once they have 
fairly entered upon the career of public debate, is calculated to give 
an entirely new turn to affairs. Civil war rarely makes its way 
through the medium of public debate. Discussion and reasoning on 
such an extended scale presuppose a wide diffusion of information, and 
a very general disposition to reflection among the great mass of the 
people, both of which are greatly assisted by listening to these de- 
bates. The independent condition in which the bulk of the popula- 
tion are placed, their educated habits, and the strong, masculine sense 
which the two conjoined produce, impart to them a strong appetite for 
public discussion. When the plan of holding these conventions was 
first introduced, the public mind seized upon it with avidity, as some- 
thing which it had long been in search of. For nothing presents so 
imposing and animating a spectacle as do these assemblages, since 
they bring into play a living, instead of a merely fictitious, sympathy. 
The love of strong sensation is an universal trait in the human char- 
acter; and it finds vent in this way. Hence political assemblages 
may be said to constitute the amusements of the American people. 
The crowds who attend them desire to hear public affairs talked 
over and reasoned about. And the leaders of parties are compelled 
to follow this bent of their disposition. However incompetent a great 
number of the speakers may be, their ambition is at any rate directed 
into a new channel. They strive to make display of their informa- 
tion, to show their acquaintance with the political history of the coun- 
try, to grapple with the most difficult problems of legislation. Every 



CHAP. III.] 



OF FREE INSTITUTIONS. 



293 



step they take only raises up fresh obstacles in the way of civil war. 
An intellectual cast, in spite of themselves, is given to the whole ma- 
chinery of parties ; and instead of those dark conspiracies and acts of 
desperate violence which have been so common in other countries, 
the efforts of these politicians simply terminate in curbing their own 
ambition, and in making the people more deeply sensible than ever of 
the deplorable consequences of civil insubordination. The European 
kings raised the privileges of the towns, in order to use them in 
bridling the power of the nobility. The result was, that the towns 
succeeded in checking the power of both kings and nobility. 

It is one great advantage of these meetings, that they bring the 
country and the town population into contact and association with 
each other. Political conventions, which were once held only in large 
cities, are now equally common in the agricultural districts. The 
meeting may take place in the county town : but vast numbers from 
the country flock to it. I have known twenty, thirty, fifty thousand 
people assembled on these occasions. Now the rural population are 
the natural balance of the city population. In other countries, in 
consequence of the want of combination among the former, and their 
destitution of the means of instruction, the inhabitants of the towns 
have had things all their own way. But in the United States, the 
means of instruction are imparted to all parts of the population ; and 
political conventions afford the most favorable opportunity for concert 
and united efforts. 

The military institutions of the United States stand upon a dif- 
ferent footing from what they do in Europe. In the European states 
an army is kept up, ostensibly to provide against the contingency of 
foreign war, but with the further design of maintaining the authority 
of government at home. That which is the principal end among the 
nations of the old world, is not even a subordinate end in America. 
The government of the United States relies upon the people them- 
selves for the preservation of order. And that this reliance has not 
been misplaced, an experience of nearly seventy years amply testifies. 

This very remarkable difference between the military institutions 
of these nations is the natural and necessary consequence of the dif- 
ference in their civil institutions. As in the United States the gov- 
ernment is the workmanship of the people, by the people is it most 
naturally preserved: but as in the old world it is a sort of self-existing 



294 



NATURE AND TENDENCY 



[book III. 



institution, it is driven to rely upon its own resources for the main- 
tenance of its authority. The European princes complain that 
obedience to the laws cannot be insured, unless they are placed in pos- 
session of an imposing military force. And how can it be otherwise, 
when the laws are neither made by the people, nor for the people. In 
Italy and Spain, when a murder has been committed, persons who are 
spectators of the deed flee instantly, in order that their testimony, if 
possible, may not be used against the criminal. So detestable in their 
eyes is the whole apparatus of government, that they involuntarily 
shrink from lending assistance in the detection or condemnation of 
the criminal. And the same feeling seizes every one, on occasion of 
those civil disorders which are infractions of the law upon a much 
larger scale. The army is the king's, not the people's; and let the 
king take care of himself, seems to be the language of the spectators. 

In the United States an insurrection against the laws, in which a 
majority of the people should be embarked, is an event which cannot 
take place. In the European states, it has frequently occurred : and 
would happen still oftener, if the few did not grasp a weapon of 
powerful efficacy in repressing popular grievances. In the United 
States the militia, which is only a collection of the citizens, constitutes 
the reliance of government in suppressing disturbances, whenever the 
ordinary police is not sufficient for the purpose. 

The difficulty of creating a militia in the European states, arises 
from the extreme repugnance of those governments to permit the 
people to have arms. The permission, wherever it exists, is regarded 
in the light of a privilege, and is accompanied with the most odious 
restrictions. The celebrated statute of William and Mary, generally 
known as the bill of rights, allows persons " to have arms for their 
defense, suitable to their condition and degree, and such as are allowed 
by law." The words which qualify the privilege are provokingly 
ambiguous ; and were doubtless intended to be so, in order to wait a 
more favorable opportunity for asserting the full authority of govern- 
ment. Accordingly, the statute of George III, c. 1 and 2, authorizes 
justices of the peace to seize arms, whenever they believe them to be 
in possession of persons for dangerous purposes. 

Now one can conceive of a militia to whom arms were never 
intrusted, except when they were actually called into service, but it 
would be a militia without a soul. The single circumstance that the 



chap, nr.] 



OF FREE INSTITUTIONS. 



295 

4k 



American government feels no jealousy whatever, as to the carrying 
of arms by private individuals, sheds a flood of light upon both the 
civil and military institutions of the country. In truth, there is no 
such institution as a militia, in the proper signification of the term, 
in any European state. It is the offspring of free government, and 
can only exist in conjunction with it. In Great Britain, by an act 
passed in the reign of George II, a certain number of the inhabitants, 
selected by ballot, were to be organized as a militia for successive 
terms of three years. They were to be annually called out, trained, 
and disciplined for a certain number of days, and the officers to be 
appointed among the lords, lieutenants of counties, and the principal 
landholders. But this force was only intended as auxiliary to the 
regular army, and the whole scheme has been long since abandoned 
The plan of training and disciplining the whole adult population, in 
peace, as well as in war, has never been entertained except in the 
United States. The national guard of France approaches the nearest 
to it. 

As is often the case, where what was once a privilege has become 
the common property of all, the people in some of the American 
states appear to set very little value upon their character as soldiers. 
Public opinion appears to have undergone a very great change with 
regard to militia duty. In Massachusetts, Maine, and Vermont, com- 
pulsory drills became so unpopular, that they were at length abolished. 
In Massachusetts, the sum of fifty thousand dollars is annually appro- 
priated to any number of the militia, not exceeding ten thousand, for 
voluntary duty a certain number of days in every year. In Maine 
the militia system is retained by continued enrollment of all who 
would be bound at her call to come forth for the support of the laws, 
or the defense of the soil. In Vermont, the laws requiring militia 
drills have been repealed, and in their place has been substituted an 
enrollment similar to that for jury purposes, of all who under the old 
system would have been liable to militia service. The militia system 
is retained in these states as the only effective military force, but the 
frequent mustering deducted so much time from the civil pursuits of 
the people, that it has been dispensed with. They only who compose 
the substantial power of the commonwealth, can afford to abstain 
from making continual display of it. 



296 



NATURE AND TENDENCY 



[book III. 



CHAPTER IV. 

INSTITUTION OF THE PRESS. 

The press is a component part of the machinery of free govern- 
ment. There would be an inconsistency, then, in arguing whether it 
should be free. It is the organ of public opinion, and the great office 
which it performs is to effect a distribution of power throughout the 
community. It accomplishes this purpose by distributing knowledge, 
and diffusing a common sympathy among the great mass of the pop- 
ulation. Knowledge of some sort or other all men must act upon in 
the ordinary affairs of life, in order to render their exertions fruitful 
of any result. Political society, which connects men together while 
living in the most distant parts of an extensive country, is in need of 
a still wider range of information. It would be correct, therefore, to 
say that the freedom of the press was to knowledge, what the aboli- 
tion of primogeniture was to property : the one diffuses knowledge, as 
the other diffuses property. 

If we inquire, why in most countries so much power is concentered 
in the hands of government ? the answer is, plainly, that knowledge is 
condensed in the same proportion. If we could suppose it to be uni- 
formly diffused, government would cease to be a power : it would be- 
come a mere agency. Por although it would be necessary to confide 
exclusive trusts to the public magistrates, in order to conduct the 
joint interests of society, yet the extent and activity of public opin- 
ion would give control to the power out of the government. This is 
an extreme case ; and an extreme case is the most proper to illustrate 
the intermediate degrees, where the shades of difference are so minute 
as to run into one another. 

If, in a state where representative government was established, we 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



297 



should suppose the press to be suddenly annihilated, the political in- 
stitutions would not long preserve their character. As there would 
be no superintending control any where, and no acquaintance with 
what was transacted in public life, the affairs of state would soon be 
involved in the deepest mystery. Knowledge would be confined to 
the men who were the chief actors upon the stage of public life, and 
the very necessary authority which had been conferred upon them, in 
order to further the public welfare, would be converted into a mere 
engine of power. Usurpation would be heaped upon usurpation. So- 
ciety would at first be a scene of infinite confusion. During this 
period, there would be many violent struggles between liberty and 
power. But as a state of disorder can never be the permanent con- 
dition of any community, the contest would terminate in the consoli- 
dation of power. And this vantage ground once obtained, the popu- 
lation would easily be molded so as even to co-operate in carrying out 
the designs of the governing authority. 

If the press were extinguished, the great principle on which repre- 
sentative government hinges, the responsibility of public agents to the 
people, would be lost from society ; except in those few instances 
where the duties to be performed were confined within so narrow a 
circle as to render them the subject of as direct supervision as the 
affairs of private life. The parish and the township officer would 
continue to be watched and controlled, until the revolution I have 
described established a system of universal centralization, and wrested 
the power of electing even those officers from the people. 

These views afford a sufficiently clear illustration of the truth of the 
observation, that the principal function which the press performs in a 
political view, is to equalize power throughout all parts of the com- 
munity. 

The power which opinions exert upon society, is in direct propor- 
tion to the intrinsic value they possess, and to the publicity which 
they acquire. Both these circumstances are affected by the condition 
of the press, which gives impulse to thought, and free circulation to 
opinions. The action of mind upon mind, sharpens the faculties and 
kindles enthusiasm : and the extent to which an opinion prevails, in- 
dicates the number of persons whom it interests, and the degree of 
concert which is established among them. A thought, wrapped up in 
the bosoms of a few individuals, can never acquire importance ; but 



298 



NATURE AND TENDENCY 



[BOOK III. 



when it engages the sympathy of a great multitude, it becomes more 
than a thought : it is then a new power added to public opinion. 

What we term public opinion, is not the opinion of any one set of 
men, or of any particular party, to the exclusion of all others. It is 
the combined result of a great number of differing opinions. Some 
portion of truth often adheres to views and speculations which are 
apparently the most unreasonable, and it is the true side which they 
present, that goes to swell and to make up the sum of public opinion. 
Not that this is always the case — not that it is the case in any parti- 
cular instance — but the tendency is constantly in that direction. 

Very important consequences follow from this in a political point 
of view. The mixture of so many opinions, causing light to be shed 
upon each, contributes to moderate the tone of party spirit. How- 
ever irreconcilable the views of parties may appear to be, a free 
communication cannot be established between them without producing 
a visible influence of each upon all. The press, in its efforts to widen 
the breach, and to make one opinion predominant, is compelled to 
make all opinions known, and creates the very process by which all 
are sought to be rectified. The free exposition of the views of 
parties constitutes a sort of lesser experience, which supersedes the 
necessity of actual experiment as a means of testing the utility of 
each. This public administration is prevented from running rapidly 
from one extreme to another, and in spite of the machinations of all 
sorts of parties, the people are insensibly drawn to the defense and 
adoption of wiser ,and more wholesome measures. Political conten- 
tions, in a monarchy or aristocracy, are like those personal rencounters 
in which one party is beaten to the ground. But the war of opinions 
is not conducted after this manner, for there the weaker side often 
rises from the conflict with redoubled strength. 

Opinions may be even absolutely absurd and preposterous, and yet 
may contain a sort of negative truth. A system of religious belief, 
founded upon the grossest superstition, may simply signify to the men 
of other sects, that their practices are totally at war with the pure 
doctrines which they profess to teach. So it is said that in some 
parts of the United States individuals are to be found who have a pre- 
dilection for monarchical government. Such fanciful notions cannot 
put out the light of the nineteenth century; but they may read a 
very instructive lesson to the men of all parties. They may signifv 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



299 



to many who espouse free institutions : " Your conduct is inconsistent 
with the noble sentiments you profess to admire. Your designs are 
the most selfish and unpatriotic imaginable ; and you would leave no 
stone unturned in order to compass them. If this were not so, our 
opinions could not stand up for a moment. In America, at least, 
they would never have gained entrance into a single bosom." Thus 
the existence of error often leads to a clearer sight of the truth, and 
the wide dissemination which the press gives to opinions, increases 
the intensity of the light by which all parties are enabled to see their 
sentiments reflected. 

The facility with which opinions are promulgated, might seem to 
be unfavorable to stability in the public councils. And if it were so, 
it would be preferable to the complete despotism of one opinion over 
all others. But all change, which is the result of liberal inquiry, 
invariably leads to stability, for this never consists in the inflexible 
pursuit of one line of policy, but in giving an ear to suggestions from 
all quarters, and causing the public administration to rest upon the 
widest foundation possible. Certain it is, that although this may 
never be the design of those who stand at the head of public affairs ; 
yet in a democratic republic, the existence of the press, some how or 
other, insures that it shall sooner or later be brought about. 

In France during the reign of the Bourbons, and in England in 
that of the Tudors, one set of opinions ruled the state, and it was 
ruled with a rod of iron. In America, where one party has never 
been able to succeed to the extent of an extreme opinion, the public 
administration, although wearing occasionally the appearance of fic- 
kleness, has in the main preserved a character of remarkable consis- 
tency. It has been made firm only at the cost of being enlightened. 

The press may then be regarded as an extension or amplification of 
the principles of representation. It reflects the opinions of all classes 
as completely as do the deputies of the people. The difference con- 
sists in this, that it has the ability to influence, without that of com- 
pelling. And there is this advantage attending it, that it is in 
constant activity before the public mind, and does not like the legisla- 
tive body speak only periodically to the people. Checks in govern- 
ment, as I have before remarked, are of two kinds: positive and 
indirect. The European states afford instances enough of the first : 
the American republic exhibits a great example of the second. 



300 



NATURE AND TENDENCY 



[book III. 



Public opinion is the great preventive check of civil society, and 
wherever it is firmly established, the necessity of a recourse to the 
system of positive checks is to the same extent diminished. 

When Cecil, the celebrated minister of Elizabeth, established the 
first newspaper in England, he little thought that he was creating a 
powerful counterpoise to that throne of which he was an idolater. To 
disseminate information with regard to the movements of the Spanish 
armada, and thus to assist the country in making a vigorous and con- 
certed resistance to a foreign enemy, was his design. The most 
exaggerated accounts were circulated with regard to the Spanish 
armament, terror was spread among the inhabitants, and Lord Bur- 
leigh, who had reflected maturely upon the moral influence which the 
press was calculated to exert, fell upon this expedient as a certain 
means of relieving the public mind from anxiety, and inspiring it 
with resolution. The journal which he called into being, diffused in- 
formation far and wide, corrected the misrepresentations which were 
afloat, and produced union and combination among all parts of the pop- 
ulation. But the plan has resulted in a vast and complicated system, 
by which the rights of the people are protected from invasion by their 
own government. A new engine was created, which has contributed 
materially to effect all the great changes which have since taken place 
in favor of civil liberty. In 1821, there where twenty-four millions 
of newspapers annually sold in Great Britain. And in 1827, there 
were twenty-seven millions circulated in the United States. 

The process by which this great revolution has been brought about 
is very obvious. The press has given a voice to an immensely nu- 
merous class of the population who before composed a mere lifeless 
and inert body, but who now contribute essentially to the formation 
of what we term public opinion. A single newspaper may be very 
barren and uninteresting ; but the sum of all the information which 
is in this way brought to bear upon the public mind is incalculable. 
What we stand in need of, is information, and not merely the result 
of information. The great mass of mankind acquire knowledge with 
surprising facility, when it is communicated in detail. Facts thus 
presented have a distinctness which gives them an easy admission to 
the mind, and the conclusions which are deduced, are both compre- 
hensive and more practical. The sagacious and inquisitive spirit of 
very obscure men in the inferior walks of life, frequently stirs the 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



301 



public mind on questions of the greatest interest to society. Such 
persons often suggest hints and anticipate improvements which men 
of cultivated understandings, and more intent upon past history than 
upon the character and genius of their own age, would not have had 
the boldness to adopt. Perhaps it would not be too much to affirm, 
that almost all the great revolutions in human affairs may be traced 
to this source. The wealthy and educated, having attained the goal 
of their ambition, have nothing further to desire. Their views and 
exertions are confined to their own order. If such is the case with 
the men who occupy a lower position in society ; if they also are in- 
tent upon advancing their own interests; we at any rate make sure, 
when activity is imparted to them, that all orders of men in the state 
shall be taken care of. But to give activity to the great classes of 
society, is in effect to connect them together, to form substantially 
one class, and to create a system of opinions and interests which shall 
be common to the whole population. Accordingly in the United 
States, men of all conditions are found associated in endeavors to ex- 
tend education, to promote public improvements of every kind, and 
above all, to further the interests of religion and morality. The 
great advantage which the towns formerly possessed over the country, 
consisted in their superior intelligence, and greater ability to combine 
for any public purpose. But the dispersion of knowledge by means 
of the public journals, has placed the city and the rural population 
on nearly the same footing; — another example of the influence of the 
press in producing an equal distribution of both knowledge and 
power, throughout the community. 

The freedom of religion, of suffrage, and of the press, which has 
been introduced into some countries, was brought about by the very 
reasonable complaints of men who occupied an inferior position in 
society. The learned and the educated consulted their books, inter- 
rogated history: they paused, they doubted, they refused, until at 
last public opinion grew to be too strong. Suddenly, a great change 
was effected in the political institutions, and as government was thence- 
forward made to stand upon a broader foundation than before, and to 
interest all classes in its preservation, those who had predicted that the 
most fatal consequences would follow from such innovations, were 
surprised to see their calculations falsified, and to find that every 
interest which pertained to society had acquired additional stability. 



302 NATURE AND TENDENCY [book hi. 

The political press in the United States has a different character 
from what it has any where else. As there are no privileged classes, 
it is emphatically the organ of popular opinion. Society is divided 
into parties, but they are all parties of the people. The moment the 
people drew to themselves the whole political power, public disputes 
began to wear a new aspect. They ceased to be the feuds of distinct 
orders of men, and became the quarrels of members of one and the 
same family. And it is needless to add, that this was not calculated 
to lessen the acrimony of political dissensions; on the contrary, it has 
greatly increased it. But there is this compensation for the mischief : 
that instead of the terrific assaults of two hostile combatants upon 
one another, the power of the press is broken up into small fragments 
and we have only a war of skirmishes. 

The journals of no country surpass those of the United States in 
ribaldry and abuse. But a great part of what we term public dis- 
content, is in reality only private discontent in disguise. Our private 
troubles we do not care to divulge, because hardly any one can take 
an interest in them; they are deposited among the secrets of the 
human heart. But the burden is too great, and every one endeavors 
to find out some circuitous means of giving vent to them. As soon, 
therefore, as the exciting topics of political controversy begin to agi- 
tate the public, the fiery elements of the character are seen to burst 
forth. All those private discontents which originated in envy, perso- 
nal animosity, neighborhood bickerings, the finding one's self placed 
in a false position to the rest of society, in fortune, reputation, or 
understanding, immediately disclose themselves, and give a bitterness 
and vulgarity to public disputes which do not properly belong to 
them. Men throw the mantle of politics over their faces, and fight 
each other in masks. The consequence of this state of things is, 
that private character and personal conduct of almost every kind, 
are the subject of attack, beyond any thing which is known else- 
where. 

So long as legislators are reduced to the necessity of governing by 
general rules, society must in part be regulated by the rival passions 
and propensities of individuals. They who narrowly scan American 
society may believe that it is in danger of being universally overrun 
by backbiting; and what in its vulgar form is party politics, but back- 
biting reduced to system ? 



CHAP. IV.] 



OF FREE INSTITUTIONS. 



303 



But this melancholy infirmity, like many other defects, is designed 
to have a salutary influence. In private life it assumes the character 
of a regulative principle, by which, in the absence of any better cor- 
rective, men succeed in keeping each other in order. Nor is its 
influence in public life less conspicuous ; for there also it contributes 
to put every one upon his good behavior. If the American journals 
were exclusively the organ of the refined and educated, their tone 
would undoubtedly be more elevated. But it must be recollected, 
that the groundwork of the human character is pretty much the same 
in all classes. People living in polished society have passions and 
propensities as well as the common people ; only, in the former case, 
they are not put forth with so much nakedness. It may then be 
inquired, whether it is not one capital object of all institutions, 
whether in private or public life, to draw a veil over the bad side of 
human nature, so as to hide from view the selfishness and deformities 
of the character. And the answer is plain: such is the object, wher- 
ever the concealment does not have the effect of protecting from 
censure and rebuke the vices which are in disguise. 

As all the parties which exist in the American republic originate 
among the people, and are essentially popular parties, it follows that 
the press is a censorship over the people ; and yet a censorship created 
by the people. There would, consequently, be no meaning in the 
office of a censor appointed by the government. That institution is 
superseded by the very nature of the American press. Where a cen- 
sorship is established by the political authority of the state, it is 
applied to restrain one class of publications only. No one ever heard, 
in monarchical or aristocratical government, of any attempt to forbid 
the circulation of writings, which were calculated to increase the in- 
fluence of the prince and nobility. The utmost indulgence is ex- 
tended to them; while a rigorous control is exercised over every 
appeal in behalf of popular rights. Popular licentiousness is bridled ; 
but there is no restraint upon the licentiousness of men in power. 
There is but one way of remedying the defect, and that is by causing 
the press itself to perform the office of censor : in other words, to 
grant such absolute freedom to all the political journals, that each 
shall be active and interested in detecting the misrepresentations and 
impostures of the others. There is a real and formidable censorship 
of the press in America, but the institution is in and not out of the 



304 



NATURE AND TENDENCY 



[book III. 



press. The consequence is, that the efforts of all parties are more 
vehement and untiring, and yet more harmless and pacific, than in any 
other country. 

I shall conclude this chapter with two reflections. The first is a 
very obvious one : it is that the existence of a free press is not alone 
sufficient to inspire a people with a just sense of liberty; and to cul- 
tivate in them those qualities which are necessary to the establishment 
and maintenance of free institutions. The press was free in Den- 
mark, Sweden, and Prussia, until very modern times. It is nearly so 
in China. But in all these countries the moral power to set in motion 
this vast engine is wanting. The Prussian and Danish youth may be 
as well educated as the American, but the Prussian citizen is not 
half so well educated as the American citizen. 

The second reflection is, that the press must not be regarded merely 
as the representative of political opinions. The dissemination of 
information in the daily journals, in magazines, pamphlets, and books, 
on a variety of subjects interesting to the popular mind, withdraws 
the attention of the people from a too-intense devotion to party poli- 
tics, and educates them to be both men and citizens. 



CHAP. V.] 



OF FREE INSTITUTIONS. 



305 



CHAPTER V. 

ARISTOCRATICAL INSTITUTIONS. 

There is a fine observation of Adam Smith, in the " Theory of 
Moral Sentiments," relative to the formation of ranks. He remarks, 
that where there is no envy in the case, we sympathize more readily 
with the good than with the bad fortune of individuals ; and as much 
envy cannot be supposed to exist among the great mass of common 
people, they feel a real delight in beholding the prosperity and luxury 
of the rich ; and in this way the foundation of an aristocracy is laid. 
The observation is neither recondite, nor farfetched; on the con- 
trary, it is both solid and ingenious, and is founded in the deepest 
insight into human nature. The same idea seems to have struck 
Buonaparte when he was revolving the plan of establishing the " le- 
gion of honor." He was struck with the curiosity which the popu- 
lace exhibited in surveying the rich uniforms and decorations of the 
dignitaries who surrounded him. There was always a crowd in the 
neighborhood of his residence to witness the show. " See," said he, 
to those who objected to the unpopularity of the institution, " see 
these futile vanities which geniuses disdain. The populace is not of 
their opinion. It loves those many-colored cordons. The democrat 
philosophers may call it vanity, idolatry. But that idolatry and 
vanity are weaknesses common to the whole human race ; and from 
both, great virtues may be made to spring." In order to the exis- 
tence of an aristocracy, it is not merely necessary that there should be 
great inequality in the distribution of wealth ; it is necessary, also, 
that this condition of society should fall in with the prevailing tastes 
and prejudices of the people. A privileged class may be created by 
dint of force ; but to maintain its existence for any considerable time, 
20 



306 NATURE AND TENDENCY [book hi. 

it must some how or other interweave itself with the affections and 
sentiments of the people. 

But Adam Smith does not direct the attention of his readers to 
another fact of still greater importance, inasmuch as it prevents the 
rise of a privileged class, or prepares the way for its extirpation after 
it has been established. We may very easily suppose a state of 
society in which the common people, being lifted to a considerable 
share of independence, will feel more self respect, and have less admi- 
ration for outward show and splendor ; at any rate, in which the envy 
of which Adam Smith speaks will stifle that sentiment of admiration. 
About the time he wrote, commenced that extraordinary prosperity of 
the English nation which has continued with little interruption to the 
present day, and which has given a prodigious impulse to all sorts of 
industry: to commerce, manufactures, and agriculture. But the 
effect has been to raise up from among the ranks of the people, once 
so poor and humiliated, a formidable class whose wealth eclipses that 
of the nobility. And a further consequence is, that the sympathy 
which was before felt in the fortunes and reputation of a privileged 
body is now engrossed by an exceedingly numerous class of the popu- 
lation. The envy of which Adam Smith speaks now begins to show 
itself. The people feel that they are able to rival the aristocracy in 
wealth and intelligence, and they envy the exclusive privileges which 
are accorded to that aristocracy. I think I can discern many symp- 
toms of a loosening of the hold which the institution once had upon 
the popular mind. As the absence of envy among a thoughtless and 
ignorant people contributed to the formation of ranks, an opposite 
cause may tend gradually to undermine their influence. The institu- 
tion has already ceased to be hereditary in France, and some other 
countries. The curious trait of character which Buonaparte observed 
in the French populace, has been wonderfully modified by some other 
circumstances. 

In the United States there is no foundation upon which to build an 
aristocracy. Landed property is very equally distributed ; and the 
laws prohibiting primogeniture and entails, prevent its accumulation 
beyond a very limited period. It is the greatest nation of proprietors 
which has ever existed. One may observe signs of the same love of 
splendor and untoward show, which are visible among the people ; for, 
as the French ruler remarked, it is common to the whole race of 



CHAP. V.] 



OF FREE INSTITUTIONS. 



307 



mankind. Nevertheless, the feeling is different from what it is in other 
countries. Instead of making people contented with their own con- 
dition, and satisfied with beholding the splendor and outward show 
which others make, it renders every one uneasy and restless, and 
goads them to unceasing exertions to procure to themselves some of 
the advantages of fortune. 

As it is the effect of free institutions to take power from the supe- 
rior ranks, and to add power to the popular body, in the progress of 
time these two classes change places. The aristocracy is converted 
into the democracy, and the democracy into the aristocracy ; for there 
where the political power resides, will reside also the aristocracy. 
What was once the governing power, becomes the subject body. 
Hence, in popular government, one may observe a general disposition, 
not only to pay court to the people, but to imitate their manners, and 
to fall down to the level of their understandings. 

Declamatory talent takes the place of genuine eloquence, superficial 
views of profound thinking. It may almost be said that the people set 
the fashion in every respect. And if it were not for a tendency in an 
opposite direction, if the people were not making constant efforts to ele- 
vate themselves, the condition of society would be melancholy in the 
extreme. For the true democratic principle does not consist in letting 
down the highest in the land to the level of the lowest, but in lifting 
the greatest possible number to the highest standard of independence 
and intelligence. Although those who endeavor to ingratiate them- 
selves with the people are intent upon advancing their own interests, 
they some how or other succeed in giving an impulse to popular im- 
provement. Foreigners suppose that the democratic institutions of 
America are calculated to degrade the character of all public men, 
and to lower the general tone of intellectual and moral excellence. 
But it is important to look to ultimate and permanent results, and 
not merely to immediate consequences. Candidates for office are 
doubtless in numerous instances led to the employment of arts, and 
the cultivation of qualities, which are unfavorable to the growth of a 
sturdy and manly virtue. But, independently of the fact that these 
qualities would under any other form of government be found to exist, 
only under different forms, and with more mischievous tendencies, the 
great desideratum is obtained — that of bringing about an association 
among the different orders of men of which the state is composed. 



308 



NATURE AND TENDENCY 



[book III. 



The superior man may for the time being be lowered, but the inferior 
man will be sure to be elevated. The opportunities which most of 
the candidates have enjoyed in some degree, their pursuits in after 
life, their addiction to politics, even if it be only the superficial part 
of the science, enable them to impart some things to the people which 
the people are very inquisitive to learn, and the knowledge of which 
would be otherwise withheld from them in consequence of their daily 
occupations. The general intercourse which is thus established gives 
the most ordinary mind some tolerable insight into public affairs, 
initiates the uninstructed into the conduct of public men, and the 
import of the public measures, so that the mind the most captious 
and the least disposed to estimate free government at its true value 
must see, upon reflection, that the advantages springing from this order 
of things greatly preponderate over the mischief which is incident to- 
rt. It is impossible to produce as general an intercourse among all 
classes as is desirable, without incurring the mischief. But the inter- 
course gives to the popular understanding a very important discipline. 
Curiosity is the first step in the acquisition of knowledge; rouse that 
among a whole people, and you possess yourself of the masterkey to 
their faculties. The common people even form exaggerated notions 
of the advantages of information, after listening to repeated conver- 
sations and discourses of public men. A strong and general taste for 
education is diffused among them; and in progress of time a new 
people grows up, which is able to detect the hollowness of those arti- 
fices which were before employed to gain its favor. The evil is cor- 
rected by that same instrumentality which it was supposed would 
augment and perpetuate it. Doubtless politicians are bent upon 
promoting their own interests in their efforts to win the good will of 
the people. But some how or other, public and private interests are 
inseparably connected. Providence has wisely ordered that there 
shall be no way by which men can substantially and permanently 
advance their own interests, without advancing that of others. The 
lawyer, the physician, the merchant, are all chiefly intent upon lifting 
themselves in the scale of society; but they cannot do so without 
scattering benefits around them, and lifting the condition of others 
as well as of themselves. 

Wealth and refinement, when they are not confined to a separate 
order, are not necessarily unfavorable to a high standard of intelli- 



CHAP. V.] 



OF FREE INSTITUTIONS. 



309 



gence and morals ; on the contrary, they may be made highly instru- 
mental in the promotion of both. If this were not the case, the 
condition of a free people would be the most hopeless imaginable, for 
they are destined to make the most rapid advances in the acquisition 
of riches. 

Let us walk through the apartments of the rich man, and survey 
the interior economy of his house. We can only obtain a lively and 
correct picture of society, by examining the minute and delicate 
springs which govern it. The first thing which strikes us is the 
number of persons who compose the household. Besides the family 
proper, the easy circumstances in which he is placed enable him to 
employ several persons to attend to the various offices of the house. 
There is at once the introduction of a principle of order and regularity. 
The larger the family, and the more numerous the occupations, the 
greater the necessity for rules by which to govern it. The very sub- 
ordination in which the members of the household are placed, is 
favorable to a system of discipline in every part. The head of the 
family is constrained to exercise a certain degree of authority, and 
this authority is chiefly displayed in the maintenance of order and 
arrangement in each one's occupations. The education of his chil- 
dren, is one of the first things which engages the attention of a man 
placed in independent circumstances. If he has not been educated 
himself, his heart is the more set upon it on that very account. This 
contributes still further to introduce the elements of good morals into 
the bosom of the family. If there is refinement and luxury, and even 
ostentation, there are also some powerfully counteracting principles 
in operation. The authority of the head of the family cannot be 
maintained, the obedience of his children cannot be easily won, if he 
breaks through the rules of morality, and sets an example which is at 
war with all the precepts which he undertakes to inculcate. There 
cannot be one code of ethics for parents, and another for children. 
The consequence is, that children will impose a restraint upon parents, 
as well as parents upon children. And however ineffectual the for- 
mer may sometimes be, yet in the great majority of instances, it will 
exercise a marked influence upon the interior economy of the house- 
hold. Individuals make great efforts to acquire property, in order 
that they may live in what they term elegance; and they have 
no sooner succeeded in their desires, than they find themselves 



310 



NATURE AND TENDENCY 



[BOOK III. 



surrounded by beings whose appetite for novelty and splendor is even 
stronger than their own. The only way to maintain a due authority 
in their families, without which everything would run to confusion, 
and there would be neither elegance nor enjoyment for any one, is to 
introduce a system of rules for the government of the family. And 
these rules, to have any effect, must some how or other connect them- 
selves with the principles of morality. And when that is the case, 
the wealth which was amassed in order to enable its possessor to live 
independently and free from control, is the means of creating an 
active control in the bosom of private families. Manners, that is, 
good breeding and civility, are one of the attendants upon a well- 
ordered, domestic society, and this creates a new bond of connection, 
not only between the members of the family, but between them and the 
great society out of doors. And it is very easy to see, even from this 
rapid sketch, how the acquisition of wealth may contribute to elevate 
the general standard of morals and intelligence in the community. 

But the man placed in independent circumstances, has a great 
variety of relations to society at large. He walks abroad, and he 
finds other men engaged in enterprises of private and public improve- 
ment. If he were a subject under monarchical government, he would 
perhaps lend his fortune to aid in conducting a foreign war. If he 
belonged to the order of nobles, in an aristocracy, he would expend it 
in furthering his own aggrandizement, and that of his order. But he 
is simply the citizen of a republic in which different modes of think- 
ing prevail, and he is absolutely unable to free himself from their 
control. His whole conduct, whether he will or not, is governed by 
laws as fixed and determinate as those which guide the actions of 
men in less-easy circumstances. He becomes the member of various 
societies for the promotion of knowledge, the diffusion of benevolence, 
the amelioration of the face of the country in which he lives. All 
this is calculated to give him great influence ; but this influence is 
bounded by the very nature of the enterprises in which he embarks, 
for they contribute directly to the distribution of property and know- 
ledge among other men. He can only attain weight and consequence 
in society, by efforts which tend to elevate the condition of those 
who are below him. So that in a country of free institutions, the 
acquisition of wealth by individuals may be decidedly favorable to 
the cultivation of both public and private virtue, at the same time 



CHAP. V.] 



OF FREE INSTITUTIONS. 



311 



that it can hardly fail to promote the intellectual improvement of the 
whole population. 

The influence of property is necessarily modified by the structure 
of society, and the character of the institutions which prevail at dif- 
ferent times. At an early stage of civilization, a military aristocracy 
makes its appearance. There is then little wealth, and that little is 
condensed in the hands of a few. To this succeeds a species of baro- 
nial aristocracy, in which there is more wealth, but the distribution is 
as unequal as before. And when free institutions are established, 
both these forms are superseded by the dispersion of knowledge and 
property. The title then ceases to be a distinction. It is shared by 
so many, that there is no possible way of causing wealth to enter as 
an element into the structure of the government, without at the same 
time giving supremacy to the popular authority. In the Italian re- 
publics of the middle ages, the term, nobleman, signified simply one 
who was the proprietor of land. In Florence alone, mercantile wealth 
was able at one time to dispute this title with the possessors of 
the soil. ' 

In the United States, where the distribution of wealth is more 
complete than in any other country, one may remark a difference in 
the ground work of society in different parts of the union. In New 
England, a species of ecclesiastical aristocracy, if I may so express 
myself, once prevailed. But the growth of commercial and manufac- 
turing industry has modified that state of society, without at all 
impairing the force of the religious principle. The term, "merchant 
princes," is still more applicable to the merchants of Boston, than it 
was to those of Florence. In the south, a sort of baronial wealth 
exists ; but two circumstances have concurred to prevent its assuming 
the character of a political aristocracy. The laws of primogeniture 
and entail have been swept away ; so that a new distribution of pro- 
perty takes place at every successive generation. And although 
wealthy proprietors have a great number of dependents, or retainers, 
yet this class, possessing no political privileges themselves, are unable 
to confer any upon those who are masters of the soil. There is, in 
other words, this peculiarity attending the cultivation of the soil in 
the south, that tillage is performed by a class different from, and in- 
ferior to, the proprietors. Such an aristocracy, although it may con- 
fer personal independence, cannot create political authority. In the 



312 



NATURE AND TENDENCY 



[BOOK III. 



middle states, where there are no such distinctive traits in the com- 
position of society, an aristocracy of parties may be said to predomi- 
nate. Party spirit, accordingly, rages with more violence in these 
states, than in any other part of the country. 

But notwithstanding these differences, there is an infinitely greater 
uniformity of character among the people of America, than is to be 
found any where else. As M. de Toqueville remarks, there is less 
difference between the people of Maine and Georgia, who live a thou- 
sand miles apart, than between the people of Picardy and Normandy, 
who are only separated by a bridge. So it is said that people inhab- 
iting different districts in the kingdom of Naples are entire strangers 
to each other. And when two gentlemen from the city of Naples 
lately visited the Abruzza, in quest of information as to the natural 
productions of the country, they found there many medicinal plants, 
growing in the greatest profusion, which the Neopolitans were regu- 
larly in the habit of importing from foreign countries. 

The leading fact in the history of American civilization, undoubt- 
edly consists in the very equal distribution of the landed property of 
the country. And this is owing to the circumstances in which the 
country was found when it was settled by Europeans. The popula- 
tion was so thin, and so entirely below the standard of European 
civilization, that it quickly disappeared, and left the whole field of 
enterprise open to the white. This is a fact quite new in the history 
of society. Two effects immediately followed, each having an impor- 
tant bearing upon the character of these settlements. First, two 
distinct races, one the conquering, the other the conquered, were not 
placed side by side of each other to nourish interminable feuds, and 
to obstruct the quiet and regular growth of free institutions. Second, 
if the country in 1607 had contained as dense a population as Italy, 
at the foundation of the Roman commonwealth ; if it had only con- 
tained as full a population as Spain, Gaul, or Great Britain, when 
they were subdued by the northern tribes, the territory in all human 
probability would have been found divided among numerous chiefs 
and petty nobles : and the colonists would most certainly have ac- 
commodated themselves to this condition of society. The new pro- 
prietors, instead of vacant land, would each have acquired cultivated 
estates, together with a retinue of serfs and vassals, from whom the 
most ample revenue might be drawn. This would have been so 



CHAP. V.] 



OF FREE INSTITUTIONS. 



313 



gratifying to the adventurous spirits who emigrated, some of whom were 
connected with the best families in England, and their notions con- 
sequently tinged with the modes of thinking then prevalent, that the 
distribution of property would have become very unequal, and would 
have been perpetuated to this day. But as it was, the whole country 
was a wilderness ; the high and the low had to begin the world, by 
turning laborers themselves. There were no great estates cultivated 
and adorned, and ready to be taken possession of ; no body of retain- 
ers, who might help to form an European aristocracy. All men were 
compelled to begin at the beginning. Men were from the first trained 
in the school of adversity and hard labor. The land was obliged to 
be sold, and cultivated in small parcels, in order to give it any value. 
Its treasures were a thing in prospect only, depending upon what 
should be done hereafter, and not upon what had been done already. 
To rent it was almost impossible, since the product was not more than 
sufficient to reward the labor of the cultivator. 

Two effects followed from this : the land was pretty equally divided, 
and the agricultural population, instead of being divided into the two 
classes of proprietors and renters, assumed almost universally the 
single character of proprietors. That this has contributed to give an 
entirely new direction to the political institutions and the whole social 
economy of the state ; must be obvious to every one. 

When the colonies were severed from the mother country, an im- 
mense body of vacant land was claimed by the respective states. 
This was ultimately ceded to the federal government ; and the system 
established by that government for the sale of this land, has insured 
a still more uniform distribution than existed before the revolution. 

Similar causes influence the growth and municipal government of 
the American cities. Neither the aristocratic "regime" of the Roman 
" commune" which prevails in the south of Europe, nor the gothic sys- 
tem of tradesmen and artificers, which grew up in the middle ages, 
and still prevails in central Europe, could well be introduced. It 
was the country people who founded the villages, and continued to 
replenish them, until they became large cities. These, when collected 
on the present sites of New York, Philadelphia, Baltimore, &c, found 
themselves in a state of as complete dependence as the rural popula- 
tion. The foundation of equal privileges was laid, and took the 
place of that equal division of the soil which prevailed in the country. 



314 



NATURE AND TENDENCY 



[BOOK III. 



Nothing at all resembling the close corporations which have existed 
in Europe, even in Scotland, and Holland, has ever been known in 
America. That in Edinburgh, a city containing one hundred and 
thirty thousand inhabitants, the city council should have been a self- 
existing body, perpetuating itself by filling up vacancies in its mem- 
bers, and that the member of parliament should be chosen, not by 
the men of Edinburgh, but by this same city council, is a monstrosity 
which could hardly gain belief, if we did not know as a historical 
fact, that such was the case up to the year 1832. M. Guizot, in his 
admirable work, " De la Civilization Francaise," (v. 5, ch. 18,) has 
drawn a comparison between the rise of the cities in the south of 
France, and of New York, Boston, New Haven, and Baltimore. If 
he had pointed out the striking contrast which exists in the municipal 
" regime" of these two very different species of " communes," he would 
have afforded most solid instruction to his European readers. 

But whatever may have been the beginnings of society in America, 
if the country is destined to make prodigious advances in wealth, will 
not aristocracy ultimately show itself? will not society, even more 
than in other countries, contain a very large body of wealthy indi- 
viduals, who will attract to themselves an unreasonable share of influ- 
ence ? And if we mean by an aristocracy, a class of rich individuals, 
such will undoubtedly be the case. But when we call them indi- 
viduals, and say that they will be exceedingly numerous, we point to 
two circumstances which will limit their power, and cast the institution, 
if institution it can be called, in a different form from what it has 
assumed any where else. There would be no meaning in democracy, 
if it did not open up all the avenues to distinction of every sort, and 
we may with much more reason hold up such a condition of society 
as exhibiting the "beau ideal" of the democratic form of polity. 

For aristocracy may be divided into two totally distinct kinds : a 
civil and a political aristocracy. The first is the very natural conse- 
quence of the unobstructed progress of the population in wealth, 
refinement, and intelligence. The second is the workmanship of the 
laws, which, proceeding in a course directly opposite, undertake to 
mold society into a form most favorable to the condensation of power 
and property in the hands of a few, and by so doing, gives an artificial 
direction to the political authority of the state. In the United States 
a^ political aristocracy is unknown; but as the country has advanced 



chap, v.] OF FREE INSTITUTIONS. 315 

with unexampled rapidity in the acquisition of wealth, and the diffu- 
sion of knowledge, a civil aristocracy is every where apparent. If 
there are any causes which condemn one part of society to great infe- 
riority to another part; if slothfulness, want of a wholesome ambition, 
or vicious habits, make some men the natural enemies of this admi- 
rable state of things, Providence has very wisely ordered that an 
antidote commensurate with the evil should pervade the system : that 
the class to whom influence belongs, having themselves sprung from 
the people, should know how to temper moderation with firmness, 
and not be able to bear down upon any class with the weight of a 
titled aristocracy. 

The civil aristocracy which I have described, may be said to consist 
of the learned professions, of capitalists, whether belonging to the 
landed, the commercial, or the manufacturing classes, and of all those 
associations whose efforts are directed to the furtherance of public or 
private prosperity. 

The profession of the law differs from that of medicine in this 
particular. Lawyers are called upon to make display of their know- 
ledge in public, and this circumstance invests them with a sort of 
public character. They wear more nearly the character of a corps, or 
class. Moreover, their pursuits have a close affinity with all political 
questions, which cannot be said to be the case with the members of 
any other learned profession. The professors of medicine, whose 
services are performed in private, and whose position in society is 
necessarily more isolated, endeavor to make compensation for these 
disadvantages, by establishing every where colleges and universities, 
dedicated to instruction in their particular science. The colleges 
which were at one time established in England, for teaching the civil 
law, and the inns of court in London, a rival institution for teaching 
the common law, have nearly fallen to decay. In the United States, 
medical colleges are very numerous, but no college of jurisprudence 
exists. And yet the science of law is divided into fully as many dis- 
tinct branches as is that of medicine, to each of which a professor 
might be assigned, and thus give rise to the establishment of law as 
well as of medical colleges. Lawyers, however, seem to be satisfied 
with the share of public attention which the nature of their pursuits 
attract to them. 

Although the efforts of the clergy are all in public; yet each 



316 



NATURE AND TENDENCY 



[book ill. 



minister stands alone in the performance of his duties. And they seek 
to relieve themselves from this disadvantage in two ways : first, by 
establishing, like physicians, seminaries devoted to teaching their 
own system of doctrines; and secondly, by the institution of eccle- 
siastical assemblies of various grades, sometimes embracing the whole 
clergy of one denomination throughout the country , sometimes the 
clergy of one state, and sometimes of districts Only, in the same state. 
The first, under the names of general conventions, assemblies, or con- 
ferences, transact the business common to all the members of a 
denomination throughout the country. The second and third classes 
attend to those matters which concern the churches of one state, or 
of one district. And all contribute to bind together the members in 
one league, and to give them a just weight and influence with the 
whole lay population. 

The strength of the natural aristocracy of a country depends upon 
the worth and intelligence of the members who compose it. Neither 
wealth, nor any other adventitious advantage, are of any moment, 
unless they tend to the cultivation of these two master qualities. 
And it is because the acquisition of wealth in the United States does 
actually tend in this direction, that its influence is so beneficial. The 
civil aristocracy becomes so numerous and so powerful that it is 
impossible to found a legal or political aristocracy. But it has been 
supposed that the popular sentiment in America is unfriendly to 
intellectual distinction. And yet a very fair proportion of men of 
eminent endowments have been elevated to oflice. This envy of 
intellectual distinction which has been ascribed to the people, if it 
does exist, indicates at any rate that that species of distinction is 
appreciated and coveted by them. Men envy in others those quali- 
ties which confer respect ; and in so doing give no slight evidence that 
they are themselves ambitious of the same distinction. It is the first 
step in the intellectual progress of a nation. When the population is 
an inert, ignorant mass, it has no envy, because it has no inward 
spring of improvement. Moreover, this jealousy of talent, although 
it may for a time cast very eminent men into the shade, is sometimes 
attended with very great advantages to themselves. The revolution 
which brought Mr. Jefferson into office, found the great body of 
American lawyers enrolled in the ranks of the federal party. They 
were consequently very generally excluded from oflice. This with- 



CHAP. V.] 



OF FREE INSTITUTIONS. 



317 



drawal from the noisy field of party politics caused them to devote 
themselves more exclusively to their profession, and the consequence 
was, that the legal profession attained an unparalleled eminence 
during the twenty-five succeeding years. American jurisprudence 
was built up into a compact and regular science, and acquired such a 
commanding influence, that it became a sort of make weight in the 
constitution. 

The revolution which lifted General Jackson to office, confounded 
all the former distinctions of party. Lawyers were therefore appointed 
to office, without regard to the particular party to which they had before 
belonged. The taste for public life, which has in consequence been 
imparted to them, has been in the same proportion injurious to the 
profession. The present race of lawyers are not equal to their prede- 
cessors. It must be admitted, however, that this state of things is 
not without its advantages also. As lawyers are now very generally 
introduced into public life, they are less exclusively addicted to the 
technical forms of their profession ; and this contributes to enlarge 
and liberalize their understandings. The great work of forming 
jurisprudence into a regular and well-defined system having been ac- 
complished, the community can afford to let them mingle freely in 
public transactions, in order that they may impart the influence of 
their own habits of business to other classes; and. at the same time, 
bring back from those classes some portion of their varied and 
diversified views. 

There are two ways by which mankind have hitherto been governed: 
the one by a fixed authority residing in a select class, the other by a 
sense of common interest among all the members of the society. In 
the first, the imagination may be said to be the ruling principle of 
government : in the second, we avail ourselves of the same simple 
machinery by which all other human interests are managed ; good 
sense, a love of justice, the conviction that the interests of the indivi- 
dual are, after all, identified with the public welfare. The idea with 
European statesmen is, that a government fashioned after the first 
plan will possess a greater degree of impartiality — that it will be more 
completely freed from the influence of parties. But inasmuch as the 
structure of society in modern times is constantly tending to weaken 
the influence of the imagination upon all the business concerns of 



318 



NATURE AND TENDENCY 



[book III. 



society, the time may very speedily come, when there will be no choice 
as to the form of government which shall be adopted. 

Nor is it true, that a government which is absolved from a depen- 
dence upon parties, is more impartial on that account. Parties are 
simply the representatives of the various interests of the community, 
and these interests will never be able to attain an adequate influence, 
unless they can make themselves felt and heard. Doubtless monar- 
chical and aristocratical governments may be very impartial in one 
respect. They may be so strong as to turn aside from the claims of 
all parties. But as no government which is not founded upon men's 
interests, can administer those interests with skill and success ; so no 
government which is not animated by popular parties, can ever be 
made to understand those interests. It is only since the rise of 
parties in Great Britain and France, that public affairs have been 
conducted with any thing like impartiality. 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



319 



CHAPTER VI. 

THE INSTITUTION OF SLAVERY. 

The institution of slavery has an entirely different character in the 
United States, from what it possessed in the ancient commonwealths. 
In these, the servile class occupied very nearly the same position as 
the inferior ranks in the modern European states. They might not 
only be freed, but they were afterward capable of rising into the 
ranks of genuine freemen. At Rome, after the second generation, 
their blood was considered sufficiently pure to gain them admission to 
the senate. As slaves were most generally brought from barbarous 
countries, the restraint imposed before manumission was favorable to 
the acquisition of habits which would fit them to be freemen. But 
before manumission, they filled a number of civil occupations, which 
at the present day are assigned exclusively to freemen. Even the 
professions of physic and surgery, notwithstanding the doubts sug- 
gested by Dr. Mead, seem at one time to have devolved upon them. 
Thus the servile class of antiquity, may be regarded as a component 
part of the general population ; connected with all other classes by 
numerous links, and recruiting the ranks of the last with citizens of 
hardy and industrious habits. 

This great difference in the relative condition of freemen and slaves 
in modern and ancient times, arises from the fact, that in the last, the 
two classes were composed of one race ; while in the United States, 
they belong to distinct races. This renders the whole question of 
slavery at the present day difficult in the extreme. The light of the 
nineteenth century very naturally stimulates the mind to inquiry, nay, 
imposes upon it the duty of making an examination. And yet, the 
problem presented for solution — "Is it practicable to do away with 



320 



NATUkE AND TENDENCY 



[book III. 



slavery?" — is surrounded with difficulties so numerous, and of so 
grave a character, as almost to baffle the best-directed efforts we can 
make. For how shall we emancipate from civil disabilities two or 
three millions of people, without admitting them to the enjoyment of 
political privileges also ? And yet how can this be done without en- 
dangering the existence of the very institutions which are appealed to 
as the warrant for creating so great a revolution ? In some of the 
American states, the colored population might constitute a majority of 
the electors. Where this was the case, the plan would simply termi- 
nate in raising up a black republic. For although it should be pos- 
sible to overcome the prejudice of caste among the whites, yet the 
still greater difficulty of overcoming it among an inferior and unen- 
lightened order of men, remains to be disposed of. The probability 
is, that long before the colored population could become educated and 
informed, if such an event may be deemed possible, the whole man- 
agement of public affairs would fall into their hands ; or, by a combi- 
nation between them and the worst part of the white population, the 
political power would be divided between the two. The extraordi- 
nary spectacle would then be presented, of a highly-enlightened people 
voluntarily exerting itself to turn the tide of civilization backward ; — 
for assuredly, if the scheme succeeded, society would return to the 
barbarous condition which it has cost the human race so many ages of 
toil and suffering to emerge from. In Hayti the whites are a mere 
handful, and create no jealousy. In the British West Indies, the 
property qualification which is imposed upon voters continues the black 
race in a state of political servitude; so that the experiment in 
neither has produced any result which can shed light upon the most 
difficult and perilous part of the undertaking. In the United States, 
universal suffrage, or very nearly so, is the rule. It would then be 
impossible to make a distinction between the two races, without run- 
ning into direct contradiction with the principles with which we had 
set out. How could we refuse to impart the benefit of those institu- 
tions, whose existence is the very thing which has suggested the 
change. And yet on the other hand, how could we consent to commit 
violence upon those institutions, by placing them in the power of a 
race who have no comprehension of their uses. 

The earnest and extended inquiry which this great question has 
given rise to, cannot fail to be attended with advantage. If there is 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



321 



any plan by which the institution of slavery can be gotten rid of, 
that plan will be suggested through the instrumentality of discussion. 
If there is no practicable mode of abolishing it, the freest inquiry will 
have the effect of confirming the public mind in that conviction. In 
either case, the tranquillity and welfare of the state will be better 
secured, than where every thing is seen through the twilight medium 
of doubt and ignorance. The great advantage of discussion consists 
in this : that by engaging a number of minds in the investigation of 
a particular subject, that subject is no longer viewed from one posi- 
tion only. The point of observation is continually changed, and the 
conflict of so many opinions, each of which contains some portion of 
truth, ultimately elicits the whole truth. Before the press had roused 
the human understanding to vigorous and earnest inquiry on all sub- 
jects, society was full of all sorts of exclusive opinions and exclusive 
institutions, each of which was pent up in a narrow circle, and de- 
fended from the approach of any improvement. That was formerly, 
and to a very great extent is still, the condition of much the greater 
part of the civilized world. Force, disguised under one form or other, 
was once the principal means resorted to, to set things to rights. But 
in America, the discovery has been made, that the agency which is 
most powerful and most comprehensive in its operation, consists in 
the moral force of public opinion, which, acting incessantly and in 
every direction, silently introduces changes which would otherwise 
have disturbed the whole order of society. 

When the same object is seen under different aspects by different 
minds, the most partial views are acquired in the first instance. 
Nevertheless each one, uninstructed in the process by which opinions 
are gradually matured, is vehement in the promulgation of his pecu- 
liar dogmas ; not because they are true, but because they are his. 
This is the danger which society runs, in that intermediate period 
when opinions are yet in a state of fermentation, and before time and 
reflection have been afforded, to separate what is true from what is 
erroneous. This danger is diminished, instead of being increased, in 
proportion as the spirit of inquiry becomes more free and independent. 
For then, to say the least, the shades of opinion are so infinitely 
varied, that the advocates of one and the same plan are frequently 
obliged to pause, in order to come to an understanding and com- 
promise among themselves. Half -formed and sectarian opinions are 
21 



322 



NATURE AND TENDENCY 



[book III. 



very apt to produce sinister feelings and designs. This diminishes 
their influence still more, and prevents their acquiring an exclusive 
authority in the community. In the nonslaveholding states of Amer- 
ica, the population is universally opposed to slavery. Public opinion, 
however, is so justly tempered, that the party which desires to carry 
out the extreme measures of the abolitionists constitutes a small mi- 
nority. But opinions which are even tinctured with sinister views, 
ought never to be disregarded on that account. Our enemies always 
tell us more truth than our friends; and they are, therefore, fre- 
quently the best counsellors we can have. 

There is another danger to which society is exposed. In times 
when schemes of public improvement are agitated, the spirit of phi- 
lanthropy is sure to be awakened. This is more particularly the case, 
where these schemes are intended to affect private manners. But a 
well-informed understanding is as essential to the execution of any 
scheme of philanthropy, as is a benevolent disposition. The two, put 
together, make up the only just and true idea of philanthropy. Not 
only a correct discrimination between the possible and the impossible, 
but a wise and cautious adaptation of means to ends, in every thing 
which is practicable, are necessary to insure success. Without an 
enlightened understanding, there is no governing principle to guide ; 
and without benevolence, there is no motive power to give vigor and 
effect to our actions. Hence, when these two qualities, each exerting 
a prime agency in the constitution of man, are dissociated, or not 
properly balanced, all our efforts become abortive, or mischievous. 
They become so, simply because we have not acted up to the genuine 
notion of philanthropy. 

In a country where free institutions are established, and unlimited 
freedom of discussion exists, this danger is increased, since every one 
then persuades himself that he is in duty bound to give utterance to 
his opinions, and that if these opinions are only conceived in a spirit 
of benevolence, they must necessarily be entitled to command : thus 
reversing the whole order of our nature, and making the feelings an 
informing principle to the understanding, instead of the understanding 
acting as a regulative principle to the feelings. 

On the other hand, this danger is greatly countervailed by the very 
causes which give occasion to it. An unbounded freedom of thought 
and inquiry being exercised by all, those who hold contrary opinions 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



323 



are equally earnest in the promulgation of them. And even if the 
views on either side are pushed to an extreme, as they probably will 
be, the incessant disputation which takes place gradually wears out 
and exhausts the feelings, and enables the understanding to take 
clearer and more comprehensive views of the whole field of inquiry. 

There are three errors to which philanthropists (those of the 
unphilanthropic are without number) are chiefly exposed : 

First. By fastening attention upon some one defect in the social 
organization, and giving it an undue importance, they weaken the 
sentiment of disapprobation with which other defects, equally glaring 
and mischievous, should be regarded. This forms no part of their 
design, but it is the inevitable conseepience of the course they are 
driven to pursue. Great multitudes of persons, who are entirely free 
from the stain which is endeavored to be wiped out, but who are 
overrun by other vices or infirmities equally offensive to genuine 
morality, join the association of philanthropists. They do so because 
this presents one common ground, upon which people of the most 
contradictory opinions and habits in other matters may meet; 
and, because, by combining with the philanthropic, in a philan- 
thropic design, they withdraw public attention from their own defects, 
nay, they even seem to make amends for them, and to purchase the 
privilege of persevering in them, by lending their efforts to a single 
undertaking, whose avowed object it is to ameliorate the condition of 
mankind. Hence, the extraordinary spectacle which is frequently 
presented, that a party dedicated to a benevolent purpose is, notwith- 
standing, crowded by persons whose designs are the most sinister 
imaginable, and whose feelings are nothing but gall and bitterness. 

Second. There is another mistake into which philanthropists are 
apt to fall. In every society which has attained a high civilization, 
there are always numbers of persons who, from a variety of causes 
too indefinite to be described, are discontented with the social organi- 
zation amid which they reside. No matter whether this proceeds 
from temperament, or ill fortune of one kind or another, from disap- 
pointed ambition in any favorite end, whether in the walks of public 
or private life, or from being placed in a false position to the rest of 
society, the fact is so, and it exercises a deep influence upon human 
actions. Such persons seek to administer opiates to their troubled 
feelings, by brooding over the infirmities and binding up the wounds 



324 NATURE AND TENDENCY [book in. 

of others. The sombre and melancholy interest which pervades all 
their actions, impresses them with a character of earnestness and 
sincerity which irresistibly commands respect. The opinions of this 
class of persons are never to be shunned; for as human nature is 
constituted, it seems impossible to sympathize with the sufferings of 
others unless we have been made to suffer much ourselves. We 
should avail ourselves of the feeling, but join to it an enlightened 
understanding, that so we may be more intent on relieving the infirmi- 
ties of others than of curing our own. 

The present has been correctly termed the age of eclecticism in 
mental philosophy. It is so in every department of thought. The 
tendency, in every thing connected with the knowledge or the interests 
of man, is to draw light from every quarter ; not to consider different 
opinions on the same subject, as forming distinct systems; but rather, 
as all conspiring to form one consistent and comprehensive scheme of 
thought. 

Third. There is frequently among philanthropists a want of tact in 
distinguishing between the practicable and the impracticable. This 
causes the path they would follow to be strewed with numerous diffi- 
culties and temptations. I do not use the word, " tact," in its vulgar 
signification, as importing mere adroitness, or empirical dexterity ; but 
as simply denoting an ability to make application of our theories to 
the practical affairs of men. In this sense, it may be said to be the 
consummation of all our knowledge. But it implies a wide observation, 
and a profound acquaintance with the history and constitution of man. 
It is well when actions which abstractedly have a character of benev- 
olence, have in practice an opposite tendency to describe them as they 
are ; and it is equally proper, when words which exercise such do- 
minion over one half of mankind have usurped a foreign or ambigu- 
ous meaning, that we should call them back to their appropriate 
signification. 

The man of the highest faculties, and who devotes them exclusively 
to improve the condition of his species, on being placed in society, 
immediately finds himself pressed with this difficulty. On the one 
hand, there is a rule of right which, in consequence of its being a rule, 
is in theory conceivable of universal application. On the other hand 
stands the fact, that in spite of all the efforts of the individuals who 
have preceded him, a vast amount of poverty, suffering, and vice 



I 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



325 



exists every where. As the causes which produced this state of 
things were beyond his control, so no remedies which he will apply 
can have more than a partial application. Is he. to stop short, to 
abate his exertions? Not at all. There is a wall of adamant some- 
where, over which he cannot leap, and which yet he is unable to dis- 
cern. He should, therefore, endeavor to make constant approaches 
to it, as if it were no where ; but at the same time, never to part with 
the conviction that it does actually exist. This will not diminish the 
force of his exertions, since within the bounds of the practicable there 
is more than enough to give employment to the most active benevo- 
lence. But it will render those exertions more enlightened, and there- 
fore more efficacious. There is another thing which he may do, and 
one which is neglected above all others. He may in his own person 
afford an example, that the rule of right, not in one particular only, 
but in all, is carried to the furthest extent of which it is capable. It 
is, because we fail to do this, that all our efforts to improve the man- 
ners of others fall entirely short of the mark. Nor can I conceive 
any thing better calculated to exercise a powerful influence upon the 
actions of other men, than a genuine example of purity of life, if it 
were to be found, even though it should never assume to intermeddle 
with the conduct of others. 

These three circumstances contribute to corrupt the manners, by 
rendering some abuses more prominent than others, which are equally 
or more deserving of animadversion ; and by investing the last, and 
the men who practice them, with an air of authority which no ways 
belong to them. 2d. The moral sense is perverted, by making our 
own uneasiness and discontent the prime mover of our actions. For 
then it only depends upon accidental circumstances, whether the indi- 
vidual shall plunge into dissipation, become the victim of misguided 
ambition, enlist in the ranks of the soldiery, or throw himself into an 
association, the novelty of whose enterprises will create strong sensa- 
tion, and prevent the mind from preying upon itself. 3d. The judg- 
ment is obscured by a failure to know and to appreciate the very 
thing which a being of limited capacities is bound to be acquainted 
with ; the extent to which he may carry his exertions, and- conse- 
quently, the means which should be employed for that purpose. So 
that they who undertake to instruct and improve mankind, and who 
suppose that the very nature of their vocation places them beyond 



326 



NATURE AND TENDENCY 



[book III. 



the reach of public opinion, very frequently find that they are equally 
obnoxious to it, ajid that they themselves stand greatly in need of 
instruction and improvement. 

The term slavery has sometimes an odious meaning attached to it ; 
and yet it deserves very grave consideration, whether the distinction 
between what we call slavery and some other forms of servitude is 
not for the most part an artificial one. The former denotes in its 
highest degree the relation which exists between master and servant, 
or employer and employed. The immature faculties of children give 
rise to a similar relation. The disabilities of both a moral and phy- 
sical character, under which menial servants and the great body of 
operatives in every civilized country labor, gives rise to the same 
connection. What avails it to call these by the name of free, if the 
abject and straitened condition in which they are placed so benumbs 
their understandings as to give them little more latitude of action 
than the slave proper, In an investigation of so much importance, it 
is the thing, not the name, we are in search of. It is true, it would 
be infinitely desirable, to cure all these inequalities in a society where 
servitude does not ostensibly exist, as well as in one where it is 
openly recognized. But in order to do this, we must be able to regu- 
late invariably the proportion between capital and labor, which would 
imply on the part of the legislator a complete control over the laws 
which govern the increase of population. Nor is it certain then that 
we should be able to succeed; since there are so many inequalities in 
the faculties, disposition, and temperament of individuals, as to give 
rise to every conceivable diversity of sagacity and exertion, from the 
feeblest up to the most strenuous and energetic. 

It is vain to say, that what is termed the institution of slavery 
contradicts the whole order of Providence ; for society every where 
exhibits the most enormous disparities in the condition of individuals. 
Nor is it possible to conquer these disparities, unless we abjure civili- 
zation and return to a state of barbarism. 

That one race of men should be inferior to another, is no more 
inconsistent with the wisdom of Providence, than that great multitudes 
of the same race should labor under the greatest inferiority and dis- 
advantages, in comparison with their fellows. We know not why it 
is, that so many wear out life in anguish and sickness, nor why a still 
greater number are cut off in the blossom of youth. We are only 



CHAP. VI. J 



OF FREE INSTITUTIONS. 



327 



permitted to conjecture, that if it were not for these inequalities, the 
little virtue which has place in the world would cease to exist any 
where. 

The institution of slavery, when it is imposed upon the African 
race, may simply import, that inasmuch as the period of infancy and 
youth is in their case protracted through the whole of life, it may be 
eminently advantageous to them, if a guardianship is created to 
watch over and take care of them. Amiable, and excellent indivi- 
duals have descanted upon the ill treatment and severity of masters. 
But no one has been bold enough to rise up and tell us all he knows. 
Domestic society in all its relations, if its secrets were not happily 
concealed from public observation, would as often exhibit mischiefs of 
the same character. Perhaps it may be asserted that every new 
country has to a great extent been peopled by young persons who at 
home were surrounded by influences of one kind or another with 
which they were not satisfied. There is always a limit at which the 
most downright and headlong philanthrophy is fain to halt, and that 
stopping place is the inmost chamber of domestic life ; although there 
it is that the foundation of all the virtues and vices of our race is 
laid. It would not do to lift the veil here, else it might show us how 
little genuine virtue exists ; and thus cast a blight over the exertions 
of philanthropists, as well as take away from the authority with 
which they speak. It is painful to think, that a great part of man- 
kind are driven to talk much of the defects of others, in order to 
convey an impression that they are free from any themselves. 

It must never be forgotten, that no institution can stand up amid 
the light of the nineteenth century, without partaking greatly of its 
influence. As the species of servitude which formerly existed in all 
the European states has been wonderfully modified in some, by the 
surrounding institutions and the general amelioration of the manners, 
the system of slavery which prevails in the southern states of the 
American union has received a still more decided impression from the 
same quarter. In the eastern division of Europe, where money rents 
are. unknown, where even the metayer plan of cultivation had not 
been introduced, but the system of serf labor is almost exclusively 
established, the treatment which the laborers receive is not near so 
humane as that of the American slaves. In Austria, the "Urbarimn 
of Maria Theresa" still continues to be the "magna charta" of the 



328 



NATURE AND TENDENCY 



[BOOK III. 



peasantry. Nevertheless the absolute authority which landed pro- 
prietors exercised over them has been very imperfectly removed. In 
1791 the peasantry of Poland succeeded in obtaining a new charter 
of liberties. But it was only in name, and their condition has not 
materially improved. During the last half century, laws, customs, 
and manners have undergone a great change. But this change is no 
where so perceptible as in the United States. It is not surprising, 
therefore, that intelligent foreigners should have been so struck with 
the fact, that the condition of slaves in America is altogether more 
eligible than that of free laborers, even in the western division of 
Europe. It is impossible to communicate an impulse to the institu- 
tions of society in one part, without causing it to be felt in every 
part. And for a very obvious reason, that every species of moral 
influence acts upon an institution, not as a dry system, but goes to 
the bottom, and affects the manners and dispositions of the beings 
who set it in motion. 

Thus the institution of slavery, growing up with the manners, and 
partaking of the spirit which animates free institutions, may be gra- 
dually so molded as to acquire a still more favorable character. It 
may become in effect a mere branch of the domestic economy of the 
household, differing from others in no one respect, except the nature 
of the occupations to which it is devoted. In the Roman common- 
wealth the treatment of slaves was cruel in the extreme. Branding, 
the torture, slitting the ears and noses> and crucifixion, were em- 
ployed for the most trivial offences. It has been reserved for the 
people who first established free institutions, to introduce also the 
only humane system of slavery which has ever existed. 

M. Sismondi, in his History of the Italian Republics (v. 7, p. 
68, n. ), remarks that it was not due to Christianity to have abolished 
slavery. And he mentions several instances (v. 8, pp. 160, 226 
and 157 ) where the captives taken in the wars of those republics 
were indiscriminately reduced to slavery. And this as late as the 
commencement of the sixteenth century. But in the last passage he 
qualifies the remark by saying : " That it is not to the Roman church 
that we should accord this high praise." For Christianity is the 
parent of philanthropy, and the parent of those institutions which in 
America have abolished the barbarous system of slavery once in 
vogue, and reared up an institution differing from it to precisely the 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



329 



same degree, that the political institutions differ from those of the 
European commonwealths. 

The influence of race is a subject which has recently engaged the 
attention of philosophical inquirers. It may be that the light which 
has been shed upon it is still too imperfect to enable us to solve all 
the difficulties which meet us. But it would be a great mistake to 
suppose that the inquiry is in no way connected with the question of 
slavery in the United States. On the contrary, it is the single cir- 
cumstance which renders the inquiry difficult in the extreme, both as 
regards master and slave. Philanthropists, in treating the subject, 
desire to deal in the most abstract propositions imaginable ; but it is 
of infinite importance to make application of these principles, in order 
to ascertain whether they are not limited, and qualified by an exten- 
sive range of experience and observation. It is certainly very 
remarkable, that Europe is the only one of the four continents which 
has been thoroughly civilized. And Europe is the only one which is 
exclusively inhabited by the Caucasian, or white race. It is equally 
remarkable, that throughout Africa no trace has ever been discovered 
of civilization, except where the white race has penetrated. The 
ancient commonwealths of Egypt, Cyrene, and Carthage, were not, as 
some people suppose, composed of Ethiopians. They were all three 
settlements from Arabia, Ionia, or Phenicia. The black race do not 
appear to have possessed even the faculty of imitating, so as to build 
up any institutions resembling those which were transported to their 
soil. This race still continues wrapped up in that immovable state 
of barbarism and inertia which existed four thousand years ago. 
Denmark, Germany, France, and England, were inhabited by barba- 
rians only two thousand years since ; and yet, through the instru- 
mentality of causes which have acted upon Africa, as well as upon 
Europe, the latter has been reclaimed, and the fabric of civilization 
which it has built up exceeds in beauty and variety the model from 
which it was taken. According to all the laws which have hitherto 
governed the progress of civilization, Africa should have been civilized 
as early as Europe. We can give no further account why it has not 
been, than that there is an inherent and indelible distinction between 
the two races, which retains one closely within a certain limit, and 
permits the other to spring far beyond it. To deny the distinction is 
not a mark of philanthropy, but rather a defiance of those laws 



330 



NATURE AND TENDENCY 



[book III. 



which have been imposed by the Deity, and which are no more incon- 
sistent with his benevolence, than innumerable physical and mental 
differences which exist among individuals of the same race. 

The revolution in Hayti dates back half a century : a period of 
sufficient duration to ascertain something of the capabilities of the 
negro race. Two generations of freemen have come upon the stage 
in that time. But we can no where discern any distinct trace of 
European civilization. The inert and sluggish propensities of this 
people have already created habits which preclude all hope of any 
substantial advancement. If they had found the island a wilderness, 
it would now be covered with wigwams. Instead of the strenuous 
industry which carries the white man forward in the march of im- 
provement, and makes him clear up the forest with as much alacrity 
as if he were subduing an empire, the negro is satisfied if he can 
appropriate one or two acres of land. All he cares for, is to obtain 
just enough to satisfy the wants of animal life. He has the name of 
freeman only : for liberty is of no account, unless it absolves us from 
the yoke of our own propensities and vices, which are full more 
galling and degrading than any physical disabilities whatever. 

I differ with those who suppose that the worst effects of emancipa- 
tion will be disclosed immediately. On the contrary, I believe that 
they will be developed very gradually, and that the impediments to- 
the introduction of order and industry among the blacks will become 
more instead of less formidable, with the progress of time. On the 
establishment of the new system, in the British West Indies, the 
novelty of the situation in which the blacks found themselves placed, 
infused for a time an unwonted ardor and alacrity into their exertions. 
But this soon died away. They have fallen back into their natural 
apathy. It is impossible to induce a race to make strenuous exertions 
to better their condition, when they are satisfied with a mere garden 
patch to sustain animal life. In the small islands of Barbadoes, and 
Antigua, where there is hardly a foot of uncultivated land, they have 
been obliged to labor. But in Jamaica, where a great proportion of 
the soil is still uncleared, and where consequently it has been an easy 
matter for the negroes to obtain one or two acres apiece, they manifest 
the same disposition as in Hayti, to squat themselves down, and to 
drag out a mere animal existence. It is no wonder, therefore, that the 
plan of importing laborers from abroad was at one time seriously 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



331 



agitated in Great Britain, nay, carried into effect; nor that after being 
abandoned it should again be revived at the present moment. The 
experiment so far has been any thing but successful. It seems to be 
impossible to train this emasculated race to the hardy and vigorous 
industry of the white man. To have made slaves of them originally, 
was a deep injustice. To introduce them into the society of whites, 
and leave them to contend with beings so greatly their superiors, is a 
still more flagrant injustice. Even if there were not an incontestible 
distinction between the two races, still if there is a total defect of 
sympathy, arising from causes which it is impossible to remove, all 
efforts to melt them into one people must fail. The statesman is 
bound to take notice of all those secondary principles which are 
planted in our nature, and which exercise so wide and permanent an 
influence upon human conduct. He must make allowance for them, 
as the mechanic does for the operation of friction. If he fixed his 
attention exclusively upon certain primary laws, which do indeed lie 
at the foundation of human society, but which are so greatly modified 
in their operation, he runs the risk of losing every advantage which 
may be derived from either the one or the other. No one supposes 
that the prejudices of kindred can be conquered, or if it were possible, 
that it would conduce to the welfare of society. They constitute an 
important part of our structure, and are no more to be disregarded 
than are those general principles which rule over extensive associations 
of men. Yet the affections of kindred confine our attention and 
views within a very narrow circle, and consequently modify all our 
conduct beyond that circle. The same analogy is visible throughout 
the whole economy of human nature. It is therefore the part of sound 
wisdom to gather up all these inequalities, and to assign to each its 
appropriate place. , s 

The philanthropic association which planned the colony at Liberia 
were fully aware of the truth of these principles. They therefore 
made it a fundamental regulation that white people should not be per- 
mitted to settle there. One can easily conceive that immense advan- 
tage might be derived from the presence and influence of the white 
race. But this is only on the supposition that that influence would 
be of the most unexceptionable character. And as it is not allowable . 
to make this supposition, wise and discerning men have determined to 
effect a complete separation of the two races. The settlement at 



332 



NATURE AND TENDENCY 



[BOOK III. 



Liberia is one of the most remarkable schemes in which human enter- 
prise has engaged; even in an age distinguished above all others for 
noble and generous undertakings. But the philanthropy which 
planned it was obliged to take into consideration the distinction of 
race, as constituting one of those secondary principles of our nature 
which influence human conduct in spite of all that we can do. 

We may say that a difference of color, and of physical organization, 
are to be regarded as accidental circumstances only. But accidental 
circumstances exercise a very wide influence upon the actions of men. 
The particular period when we were born, the institutions under 
which we live, the country which bounds our views and engages our 
patriotism, were all of them accidental circumstances, originally. But 
as soon as they exist, they cease to be accidents, or subject to our 
will. We may have been born at another period of the world, or in 
another country; have been nurtured under totally different institu- 
tions, when our habits, our character, and our whole scheme of thought 
would have taken a different direction. If in all those particulars, 
our lot has been most fortunate, let us use our privileges discreetly, 
and not trample under foot the blessings we enjoy, because we cannot 
mend the works of the Deity, according to our own crude conceptions. 

As the distinction of color is not at all dependent upon climate, 
there is every reason to believe that a meaning was intended to be 
attached to it. Doubtless, it was intended to signify that there is a 
difference in the intellectual structure of the two races ; and that it 
is the part of true wisdom, therefore, to keep them apart. The physi- 
cal make and constitution of individuals of the same race are frequently 
of so great consequence as to give a coloring to the whole of life, and 
to stamp an impression upon their conduct in spite of themselves. 

There is one class of philanthropists, who would have us consider 
men as merely disembodied spirits, and as entirely freed from the in- 
cumbrance of matter ; — a generous error, if the narrow and one-sided 
views in which it originates did not lead to consequences of an en- 
tirely opposite tendency, and afford a striking example of the untiring- 
operation of the lower part of our nature, upon those who fancy they 
are the most completely lifted above it. We are never more in dan- 
ger of sensualizing our whole being, than when we believe we have 
attained the highest degree of illumination. The founder of the Mo- 
ravian sect wished to introduce some of the obscene rites which are 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



333 



practiced in the Brahminical religion of Hindostan. The quakers of 
New England, at an early period, entered the places of public worship 
and danced stark naked. It is but the other day, that an associa- 
tion of perfectionists was announced in the city of New York, which 
proclaimed the right and the duty to practice promiscuous concubin- 
age. It requires but one step of false and detestable reasoning, to 
stride over the gulf which separates virtue from vice. If we have at- 
tained perfection, there is no way of manifesting it so decisive, as to 
practice all the things which are denominated vices, in order to prove 
that we are incapable of contamination from them. 

It has been predicted, that when the population of the southern 
states of the American union has attained a certain degree of den- 
sity, slavery will disappear. It is remarkable, however, that the ex- 
istence of the institution has no where hitherto depended upon the 
greater or less compactness of the population. It existed in the holy 
land, in India, and in Italy, for centuries after the population had 
reached its maximum. And on the other hand, it disappeared from 
the northern states of America, and from most of the European com- 
munities, while the population was very thin. In England, the final 
blow which was given to the institution may be said to have been 
in the reign of Charles II, when the population of the whole island 
was not greater than that of the two states of New York and Ohio, 
at the present time. 

There is one circumstance, however, which at this period is calcu- 
lated to have great influence upon the existence of the institution. 
The present is beyond all comparison the most commercial age which 
has been known. Nations do not live within themselves as formerly. 
Each is striving to produce as large an amount of surplus commodi- 
ties as possible, in order to exchange them for the superfluitiy of 
other nations. And as there is no doubt but what the labor of the 
freeman is, as a general rule, more efficient than that of the slave, a 
nation which employs slave labor will labor under great disadvantages 
when it goes into the market of the world, and finds that the price of 
every species of produce, which is not a monopoly one, is regulated 
by the supply of those nations which obtain it at the least cost. The 
nation which employs the cheapest labor will command the market. 
It may be true, therefore, as applicable to the present state of the 
world, that when the population of the southern states of America 



334 NATURE AND TENDENCY [book hi. 

has acquired a certain density, the labor of slaves will be less profit- 
able than that of freemen. And when this is the case it would seem, 
still proceeding upon general principles, that the slave holders will be 
the persons who are chiefly instrumental in effecting the abolition of 
the institution. 

Bat lest we should proceed too fast, there are here a good many 
things which must be taken into consideration. When we talk of the 
density of the population, in a region where slaves already constitute 
a great proportion of the laborers, we must mean a density occasioned 
by the multiplication of the whole people, and not merely of the free- 
men. Our calculations therefore must be founded upon the supposi- 
tion that the community will be able to avail itself of the labor of 
those who have been emancipated, to the same extent as before, and 
with the additional advantage of finding their exertions more strenu- 
ous and effective than ever. This at once lays open the source of all 
the difficulties which attend the abolition of slavery in the United 
States. For is it quite certain that the labor of the free black will 
be more, or even as productive as the black when a slave ? I imagine 
that the reverse is the case : and that although the labor of the white 
man, when free, is altogether more efficient than when he is a slave, 
precisely the contrary is the case with the negro. None of these diffi- 
culties attended the abolition of slavery in Europe. Freemen and 
slaves were of the same race : and the last, after they were emanci- 
pated, slid by an easy process into the position of the first. Mary- 
land and Kentucky may abolish slavery, but the effect will be not so 
much to get rid of slavery, as to get rid of the African race alto- 
gether. Persons born after a certain period will be declared free, and 
in the intermediate period, the slaves who might give birth to this 
race of freemen will be disposed of in the southern market. The 
The number of slaves in New York, at the first census of the United 
States, was more than twenty- one thousand. The number of colored 
persons in the state should now be somewhere about eighty thousand, 
if the increase was only equal to that of the slaves ; and this inde ■ 
pendently of the great number of colored freemen and fugitives from 
labor, who have gone from the southern states. The aggregate num- 
ber of colored freemen should have been greatly above one hundred 
thousand. But the census of 1840 makes it fifty thousand and 
twenty -seven. Either a great part of the original stock of slaves 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



335 



have been sold, or the free institutions of the United States are sin- 
gularly unfavorable to the growth and prosperity of this part of the 
population. 

The efforts which any class of men will put forth for the purpose 
of bettering their condition, will be in proportion to their own ideas 
of the standard of comfort, not to the notions which other people 
have formed of it. If the man is endowed with strong moral energy, 
his exertions will be vigorous. The circle of his hopes and desires 
will be enlarged. It requires but little food and raiment to satisfy 
our mere animal wants, and little toil therefore, if these are all which 
bound our exertions. It is the disposition to go beyond this limit, 
the desire to acquire the faculty of enjoyment, and not merely some 
of the things which administer to enjoyment in its lowest form, that 
has given occasion to that immense mass of industry which is now 
wielded, and which has covered Europe and North America with 
thriving and powerful communities. 

Now, if we suppose that the American negroes, on being emanci- 
pated, will fall into the inert and sluggish habits which characterize 
their race throughout Africa, in Jamaica, in Hayti; that they will be 
content with a few acres of ground, upon which to seat themselves, 
and to vegetate in a condition little above that of the brutes, we 
cannot make the same calculations as if the country were peopled by 
the white race alone. The population may be numerically dense, and 
yet in reality thin. And I do not see how it is possible to avoid 
making the supposition. All history bears witness to the existence in 
the Ethiopian of a character totally dissimilar to that of the white 
man. And the former, equally with the last, is thoroughly convinced 
of this fact. " Black man is nothing by the side of white man," was 
the exclamation, says Mr. Park, of the negroes, on witnessing some 
very indifferent exhibitions of skill at Pisania. 

This then is the great difficulty which is to be encountered in the 
United States. There is no doubt, but what the labor of the white 
man when free is more productive than if he were a slave, and this 
whether the population is dense or thin. But the reverse is the case 
with the negro. His services, when placed under the controlling gui- 
dance of the white man, may be rendered very valuable, but when 
left to himself he invariably falls into habits totally incompatible with 
strenuous and vigorous exertion. I remember a few years ago 



336 



NATURE AND TENDENCY 



[book III. 



remarking to an intelligent individual, who was active in promoting 
the formation of a Fourier association, that the great objection to the 
plan of a system of common labor and property was that it destroyed 
the incentives to exertion. His reply was a sensible one. He said 
he did not suppose it would answer as a general rule for society, but 
that from long observation he had become acquainted with a fact, 
perhaps new, but one of great interest and importance in the history 
of the individual: that there are always a number of persons scattered 
through the community, who, from causes difficult to discern or explain, 
felt themselves to be too feeble and inert to take the management of 
any business into their own hands, and more particularly their own 
business; that such persons would show themselves alert and active 
in attending to the affairs of others, but lost their self command, and 
labored under a confusion of judgment, as soon as they set about 
managing their own. He maintained, that it was to relieve this class 
of persons from the weight which constantly hung over them, and 
which cast a blight over all their exertions, that such associations 
were formed: that they constituted the exception, not the rule for 
society. And is it at all incredible, or inconsistent with the benevo- 
lence of the Deity, that qualities which are inherent in numbers of 
individuals of our own race, should belong to an entire race. Are 
the members of Fourier associations withdrawn from the pale of 
humanity on that account? No more. than is the African race. 

There is nothing which the human mind so much delights in as to 
generalize its ideas. The faculty of doing so is the highest which 
belongs to man. To be able to deduce a great truth from a given 
number of facts is alike nattering to human ambition, and serviceable 
to the cause of general knowledge. But at the same time that the 
legitimate exercise of this faculty is of great advantage, the unskillfu\ 
and imperfect use of it is often of exceeding detriment both to morals 
and knowledge. To fasten upon a few isolated facts, or upon facts 
ever so numerous, and to bind them together in the same class with 
other facts to which they bear some resemblance, but from which 
they disagree substantially, is not in any degree to subserve the cause 
of knowledge ; and if our efforts are designed to have an application 
to the practical affairs of men, they denote something worse than an 
error of judgment. They are noxious and mischievous in the extreme. 
But it is this extreme fondness for constructing general propositions, 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



337 



this worship of abstract ideas, if I may so express myself, which 
constitutes the besetting sin of very many of the associations which 
have sprung up recently. Because some people are exceedingly good 
and benevolent, perfectibility is possible. Because some men are not 
so active and energetic, when working alone as when united into an 
association, all men should be herded together in associations. Be- 
cause the white and the black man have one generic name, from that 
name are deduced the most absolute and sweeping propositions. 

But in the event of the whites multiplying to such an extent as to 
fill up all the occupations of society, to become the sole operatives 
and agricultural laborers every where, what will be the condition of 
the blacks ? They would be gradually deprived of their little pos- 
sessions, which would become more and more valuable with the in- 
creasing density of the population. The whites would have the means 
to purchase them, and the blacks would be unable to resist the temp- 
tation to sell. Or if we suppose that a considerable number con- 
tinued in the employments in which they were engaged before their 
emancipation, what still are their prospects ? The accounts which we 
have of the abject condition of the lower classes in Europe, are 
enough to sicken the heart, and almost to cause minds which are not 
powerfully fortified by reflection, to despair of the cause of humanity. 
A vigorous writer, in the Boston Quarterly Review for 1840, on sur- 
veying the deplorable condition to which the white laborer is doomed 
by the operation of the inexorable laws of population, concludes that 
it is idle to talk of the evils of slavery, when American slaves are 
placed in a far more eligible condition than any class of European 
laborers ; that there are certain mischiefs in the social organization of 
every free community as now constituted, and that it is incumbent 
upon all enlightened men and lovers of humanity to probe the mis- 
chief to the root. And he proposes, that the property of all deceased 
persons should fall to the state to be distributed among the popula- 
tion. The views which this writer took of the condition of the lower 
classes was, for the most part, correct ; but the remedy he proposes 
would be utterly powerless. If, however, there is among all intelli- 
gent observers, such an unanimous opinion as to the abject condition 
of the white laborer, when the population has attained a certain den- 
sity, what must be the condition of the African, when he is placed in 
close and death-like encounter with beings so greatly his superior ? 
22 



338 



NATURE AND TENDENCY 



[book III. 



If that period were suddenly to come upon us now, the most extraor- 
dinary revolution would take place in the opinions of philanthropists. 
They would take ground precisely opposite to that which they now 
occupy. They would cry out against the cruelty and injustice which 
would be done to the blacks by emancipating them ; they would, if 
true to their principles, inculcate the duty of maintaining a guardian- 
ship, the yoke of which would then be so easy and so desirable to bear. 

The probability is, that the same fate which has overtaken the In- 
dian race would be that of the negroes. The process of extinction 
would be more gradual ; but it would be sure. The Ethiopian dis- 
appeared before the march of civilization in Egypt, Cyrene, and Car- 
thage. And the more thorough civilization of the United States 
would assuredly bring about the same result. 

It is evident, then, that difficulties of the greatest magnitude sur- 
round this question. Now, there are few obstacles which a powerful 
and enlightened people cannot overcome, if it can be made to see them 
clearly. But long familiarity with the institution of slavery, is apt to 
beget partial and indistinct views among slaveholders, as well as 
among abolitionists. I do not suppose there is any danger that 
the blacks will ever gain the ascendency. They never succeeded in 
expelling the whites who founded so many commonwealths on the 
Barbary coast. On the contrary, they were themselves driven to the 
wall. And what has been the fortune of communities founded by an 
Asiatic race, will be the fortune of those which have been founded by 
the Anglo-Norman race in the United States. Insurrections would 
take place among the liberated blacks. And they would be quelled. 
But humanity recoils from contemplating the stern and . inexorable 
justice, which would have to be dealt out in so terrible an emergency. 

Two alternatives seem to present themselves: to transport the 
African race bodily to some other country, or to retain them in their 
present condition. The first would be literally a gigantic undertak- 
ing ; or rather, we may regard it as an impracticable one. Indepen- 
dently of the violent shock given to every species of industry, by the 
sudden withdrawal of such a multitude of laborers, the expense would 
surpass the resources of the slave states, even if those resources were 
unaffected by the deduction of such an immense mass of labor from 
the soil. The mere cost of removal would completely exhaust them. 
To transport a number sufficient to keep down the annual increase, 



CHAP. VI.] 



OF FREE INSTITUTIONS. 



339 



and to continue this plan until the country were emptied, would be 
beyond the ability of the southern states. The Moors of Spain, 
and the Huguenots of France, were expelled, not removed. And the 
expulsion in neither instance was anything like complete. The Moors 
and Huguenots had effects to take with them, to enable them to begin 
life again. The first had a kindred race on the neighboring shores of 
the Mediterranean, who were glad to receive them. The second were 
welcomed in every protestant community throughout the globe. The 
state incurred no expense. It lost a body of valuable citizens; but 
the laws of population soon filled up the void. These cases differ 
widely from the present. Not that the analogy fails in every particu- 
lar, but that when we sum up the difficulties on both sides, they are 
incomparably greater in one case than in the other. 

If then it is impossible to melt the two races into one ; if to trans- 
port one of them is impracticable, and to emancipate it would be an 
act of injustice and inhumanity, there is but one alternative : to retain 
the institution of slavery. We are never masters of the circumstances 
under which we were born. We may desire a change in every one of 
them. But the wise and inscrutable decrees of Providence have 
ordered otherwise, and we can in no way fall in with its designs so 
completely, as by accommodating ourselves to difficulties which can- 
not be surmounted; in other words, by acting up to the rule of right, 
in every situation in which we may be placed, and this not merely 
where our duties are plain, but where they lead us over a dark and 
difficult way. To attempt to beat down an institution, because we 
were not consulted as to its establishment, is to arrogate an authority 
which does not belong to us. But we may convert that institution 
into an instrument of good. We may apply to it the same rules of 
justice and humanity which are applicable to every other part of the 
economy of society. 

The men of the south find themselves born under an institution 
which they had no hand in creating — which their fathers did not assist 
in building up, but vehemently protested against when it was intro- 
duced by the mother country. Their course is plain. If it cannot 
be removed, to employ the same judgment and discretion in the 
management of it, as are due to every other institution which is 
placed beyond their control. The relation of parent and child is the 
most extensive and important which exists. The relation is different 



340 



NATURE AND TENDENCY 



[BOOK III. 



in degree, but not in kind, from that of master and slave. Parents 
by harshness and severity may, and probably in great numbers of 
instances actually do, cause the fairest and gentlest virtues to wither 
in the blossom, when, by tender and judicious treatment, they may 
have reared men and women, who would have been ornaments to 
society. And although all our exertions to produce a different con- 
duct may be of no avail, although we may not even have the right to 
intermeddle with the private relations of others, yet the duty of 
parents to act otherwise, stands as firm and unalterable as ever, and 
this notwithstanding the innumerable crosses to which they are sub- 
ject in the management of their household. Precisely the same is 
the case with the master. Great numbers of parents, in all parts of 
the world, are compelled to make use of the labor of their children, in 
tillage, in manufactures, in every species of employment. A very 
large proportion, in densely peopled countries, do actually task them 
to occupations, the recital of which makes us shudder. And if this 
be an evil inseparable from the density of the population, so that all 
efforts to extirpate it will be ineffectual, it affords another example of 
those uncontrolkble circumstances under which we were involunta- 
rily born ; but one which far surpasses in magnitude the institution 
of slavery as it has hitherto existed in the United States. 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



341 



CHAPTER VII. 

THE JUDICIAL POWER. 

Montesquieu has said, that the judiciary is the weakest of the three 
departments of the government. There are few general maxims 
which do not admit of some limitation — there is hardly one which 
does not demand this limitation in order to be true. The observation 
of Montesquieu is perfectly correct, in reference to some particular 
forms of government. In hereditary monarchy, where the executive 
is a self-existing authority, from which all appointments flow; in an 
aristocracy, where the legislative and executive authority is condensed 
in a body of nobles, the judicial power is necessarily feeble. But 
in a democratic republic, where the legislative and executive power 
is strictly bounded on all sides, the judicial may become a very impo- 
sing department. Its relative if not its absolute strength is then 
increased, for while the other two departments have been deprived of 
some of their most important attributes, the judicial power retains 
yery nearly the same position and character which it before held. It 
even seems to possess a disproportionate share of importance, which 
is probably the reason why some of the state constitutions of America 
have substituted the tenure of a term of years, in the place of a 
tenure for life. By so doing, the great principle of responsibility is 
applied to all the departments indiscriminately. As the power of 
impeaching the chief magistrate, and of punishing in some way 
equally effectual the various administrative officers of the govern- 
ment, is not deemed a sufficient reason why they should hold their 
places for life, it has not been deemed sufficient with regard to the 
judges. 



342 NATURE AND TENDENCY Tbook hi. 

f 

The judiciary does not deal so directly nor so frequently with 
political questions, as do the other departments. But it does some- 
times deal with them, and that too definitively ; in addition to which, it 
extends its authority over a vast multitude of private transactions, 
many of which receive a hue, more or less distinct, from the political 
disputes of the day. If then the judges are appointed for life, they 
may have the ability to act upon society, both inwardly and outwardly, 
to a greater degree than the other departments. For when we talk 
of political authority, we must distinguish between the abstract 
power which belongs to the body, and the active authority which may 
be wielded by the members. If, for instance, the deputies to the 
legislature are never the same for any two successive years, while the 
judges are elected for life; then, although the legislative authority of 
the state may be ever so great, yet still the power and influence of 
the judges may be greater than that of the deputies. 

Courts of justice may well be described as an institution framed 
for the express purpose of putting an end to the practice of private 
war. The legislature is well fitted to make general rules for the gov- 
ernment of the people, and the executive to keep watch over the 
public safety. But without the instrumentality of the judicial tribu- 
nals, which act in detail and not merely in the gross, society would 
be a prey to perpetual civil dissensions. Disputes between private 
individuals are occurrences of every day. The manifold relations 
which men have to each other in a thriving and cultivated society, 
multiply them greatly. These disputes have relation to the most 
valuable interests of society : life, liberty, and property. And to have 
devised a mode by which they may be quietly appeased, is one of the 
greatest achievements of modern civilization. In a state of imperfect 
civilization, the quarrels of individuals frequently assume a formidable 
shape, and become matters of the gravest public interest. The injured 
parties interest first their relatives and friends, then the neighborhood, 
and finally whole districts of country are involved in the ferment. A 
dispute respecting the boundary of lands, or a mere personal trespass, 
is kindled into a furious insurrection, which nothing but a military 
force can subdue. An institution, therefore, which goes to the 
bottom of the evil, and takes up each case as it arises, separately 
and in detail, and which is so constructed as to inspire a very 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



343 



general confidence in its impartiality and integrity, necessarily occu- 
pies a very important place in the complicated apparatus of gov- 
ernment. 

It is curious to mark the successive steps by which the practice of 
private war has been finally put down ; how, from the most confused 
and discordant elements, a regular system for administering justice 
has sprung into existence. The trial by ordeal and judicial combat, 
which make such a figure in the codes of the European states, at an 
early period, were the first rude attempts to mitigate the custom of 
private war. There may be said to be this natural foundation for the 
combat, that all ignorant people, when they are offended, immediately 
feel like fighting; and for the ordeal, that all superstitious people have 
faith in the determination by lot. But it would be a great mistake, 
as an admirable writer* has remarked, to suppose that these customs 
were calculated to fortify or to continue the practice of private war. 
On the contrary, they were designed to have an opposite effect. The 
legislator said to the injured party: if you insist upon revenging 
yourself, you shall at any rate do it according to certain forms, and 
in the presence of the public. The secret pursuit, the midnight 
murder of an enemy, were thenceforth put an end to. The pecuniary 
composition was a step still further in advance. Although at first it 
was at the election of the injured party whether he would accept it ; 
in time it came to be absolutely binding upon him. And thus the 
practice of even regulated warfare was completely checked. When 
we read, in some of the most ancient European codes, of the trial by 
ordeal, of judicial combat, and of the "wehrgeld," we are apt to 
regard them as anomalies in the history of society, of which no just 
and satisfactory account can be given. They were undoubtedly relics 
of a custom still more barbarous ; but the true view is to consider 
them as the first feeble efforts which were made to rid the community 
of the practice of private war. The duel was substituted in the place 
of private assassination; and in progress of time the relations of 
murdered man were compelled to receive a pecuniary compensation, 
instead of revenging themselves by the murder of the criminal, or his 
family. 

Although the pecuniary mulct excites surprise, when we read of it 



* Guizot's " Civilization Francais," 1, p. 365. 



344 



NATURE AND TENDENCY 



[book III. 



in the history of the middle ages ; it has notwithstanding occupied a 
considerable place in the criminal codes of some of the most enlight- 
ened modern states. In that of Ohio, passed so late as 1809, it 
makes a part of the punishment of every felony, except four. There 
was this difficulty attending this system, under the Salic and Ripua- 
rian laws, that the delinquent having no property might be unable to 
pay the fine. What then should be done? Montesquieu says, that 
he was placed out of the pale of the law, and the injured party was 
permitted to redress the wrong. But this was not the course resorted 
to by all the German nations. Some of them imposed outlawry, 
banishment, transportation, or slavery. The laws of Ohio avoided the 
awkward predicament of the Salic and Ripuarian codes, by combi- 
ning the penalty of imprisonment with that of the fine ; so that the 
maximum of the first would alone be sufficient, if the circumstances 
of the criminal made it necessary to abstain from the fine. The 
existence of the pecuniary composition in the American laws, and in 
the Saxon, Salic, and Ripuarian codes, marks two totally different 
states of society. In the last it denoted a feeble effort to get rid of 
the lawless violence which every where prevailed: but in the former, 
it was a step from one regular mode of procedure to another still 
more regular, but more humane and judicious. In other words, it 
constituted the transition state from the system of capital punishments 
to the scheme of penitentiary discipline. There was another differ- 
ence still more striking. The Germanic tribes held fast to the notion 
that a crime was an offense against an individual. They were not 
able to raise themselves to the higher conception, that it was an 
offense against society, much less that it was an infringement of the 
laws of God. Hence the fine was never so high, but what numbers 
to whom revenge was sweet could afford to pay it : hence also it was 
not paid to the state ; but was given to the injured person, or in case 
of homicide, to the relations of the deceased. 

The whole course of modern jurisprudence runs counter to such 
ideas. A crime is not merely regarded as an infringement of private 
rights, as a violation of the great rules of morality, so much so, that 
the private injury in the most flagrant cases is merged in the public 
offense. For it is the chief design of legislators, at the present day, 
to impress every one with so deep a sense of the heinousness of crime, 
that the guilty man shall both regard himself, and be regarded by the 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



345 



community as an outlaw from society. In this way, the remorse of 
conscience is added to the physical punishment which is inflicted. 
For want of such just notions, society was formerly a prey to the 
wildest disorders. For as long as the license to commit crime could 
be purchased at a price, the power of conscience was necessarily very 
feeble. The license was regarded as a privilege, instead of as a 
badge of disgrace. The life and reputation of man seem to be cheap, 
until he is raised high in the scale of civilization. He becomes ac- 
customed to the degradation of his own existence, and views the 
existence of others as being equally degraded with his own. 

I do not mean to give any opinion as to the propriety of compelling 
the criminal to make additional satisfaction to the injured person, or, 
in the case of felonious homicide, to his relations. But this should 
never be injoined as the chief end of punishment. If the plan is 
adopted, it should never, in the graver offenses, be by way of fine. 
The delinquent should be condemned to hard labor in the peniten- 
tiary, and that labor be made available to the widow and children 
who had been deprived of their support. There are even then some 
difliculties in carrying out the plan in detail. The murdered man, 
for instance, was perhaps so worthless, that instead of sustaining, he 
was sustained by his family. At the same time, therefore, that the 
public punishment cannot be dispensed with, there is no room for 
compensation to private individuals. And although cases will occur, 
where the degree of private injury can be easily ascertained, there 
will be others where it will be exceedingly difficult to compute it in 
advance, since no one can determine how long the murdered man may 
have lived, and may have been able and willing to maintain his family. 
The laws in modern times never give the fine to an individual, except 
in those cases where there is the least propriety in so doing; that is 
to say, to the base informer. 

The judiciary is considered, by Montesquieu, as a branch of the ex- 
ecutive power. That there are resemblances between these two de- 
partments, is certain ; and that the points of resemblance between 
the two are different at different stages of society, is also clear. But 
it is necessary to trace the gradual rise of both, in order to ascertain 
in what respects they differ, and in what they agree. A proposition 
may sometimes be true as an historical fact, and yet untrue as a 
principle. And the reverse may also be the case. In the former 



346 NATURE AND TENDENCY [book hi. 



instance, the business of the political philosopher is to make use of the 
fact only so far as it may be the means of eliciting the principle. 

At an early period of society, the king, or chief of the nation, by 
whatever name he was known, dispensed justice in person. It would 
be correct to say, that the judiciary then formed a branch of the ex- 
ecutive authority. But the great multitude of controversies, both 
civil and criminal, which grow up with the progress of civilization, 
put an end to this arrangement, and cause it to be superseded by an- 
other. The executive magistrate has neither the time, nor the ability, 
to attend to the ten - thousandth part of the controversies which 
are perpetually springing up in an industrious and densely-peopled 
country. He is obliged to employ a great number of subordinate 
agents : and this immediately introduces new combinations, and a new 
element of power, into the government. 

What was originally regarded as an arrangement of convenience, 
turns out to be an important step in the advancement of society. 
These deputies of the king render themselves so useful to the com- 
munity, and acquire in consequence so large a share of influence, that 
they are no longer viewed as his dependents. The administration of 
the laws, by a class of men set apart for that purpose, raises the whole 
body of judicial magistrates to an independent position in the state : 
and not only renders it unnecessary, but absolutely forbids, that the 
executive magistrate should take part in judicial proceedings. James 
I, was the last British monarch who ventured to take a seat on the 
bench ; and he was reminded by the judges that he had no business 
there — no right to give counsel and advice on the trial of any 
cause. 

But as the judges still continue to be appointed by the king, and 
to hold their places at his pleasure, the next important step is to 
render them irremovable after they are commissioned. And this was 
not effected in Great Britain until the act of settlement in 1689, nor 
even then completely until the first year of George III. In France, 
at one time, the tenure of the judges went beyond any thing known 
in England. The office was hereditary. It was the absolute property 
of the incumbent, capable of being disposed of by sale, or devise. 
And we know that Montesquieu, the celebrated writer, made sale of 
his when he retired into the country to write " The Spirit of Laws." 
At present the tenure is the same as it is in Great Britain. 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



347 



These changes are afterward followed, though at very long inter- 
vals, by another of still greater importance. The executive not only 
ceases to be judge, but he loses the power of appointment. The 
same causes, the general spread of intelligence, and the complica- 
ted transactions of society, which gave the judges so independent a 
position in the community, act with even more force upon another 
department. The legislative body, the more immediate representa- 
tives of the people, attains an entirely new rank and importance; 
and the appointment of the judges is devolved upon it. And if, when 
these were nominated by the king, it was correct to say that the 
judiciary was a branch of the executive power, with equal reason may 
we assert, that it has now become a branch of the legislative depart- 
ment. But suppose that the chief magistrate, and the members of 
the legislative assembly, are themselves elected by the people for 
limited terms, we shall not be at liberty to make either the one asser- 
tion or the other. In the early stages of society, the king is literally 
the sovereign; and it is by virtue of this attribute that he then 
centers in himself the powers of both the other departments. He is 
not merely judge; he is supreme legislator also. In proportion as 
the state becomes strong, he becomes weak. He is deprived of his 
prerogatives, one by one, in order that they may be distributed by 
the real sovereign, the people ; which now, for the first time, makes 
its appearance upon the stage. The government then assumes the 
character of a regular system. Three distinct departments are cre- 
ated by one common power ; neither of which can lay claim to any 
part of the sovereignty of the state. 

But there is one sense in which the judges may be said, in a very 
advanced state of society, to exercise a very important share of the 
executive authority. When the chief magistrate is elected for a short 
term, and none of the insubordinate officers are chosen by himself, his 
power is so greatly abridged, that he is known by the name, rather 
than by the functions he exerts. The decisions which he makes are 
not one in a hundred to those which are made by the courts : and to 
these tribunals are attached officers, who carry into immediate exe- 
cution the orders which they receive. This is the case in all the 
state constitutions of America ; which afford the most perfect models 
of government that have ever been established. In Ohio, for instance, 
the judges are perpetually active, while the executive, having little or 



348 NATURE AND TENDENCY [book hi. 

nothing to do, is almost inert. If the executive officers of the courts 
were only appointed by the courts, we might say that the judiciary 
had usurped nearly all the executive power of the state. 

The independence of the judiciary has been considered as a funda- 
mental principle in government. But by that term is understood, in 
Great Britain and France, and even in the United States, where 
European ideas sometimes contribute to modify the institutions, a 
tenure for life. And yet the same arguments which are employed to 
vindicate the propriety of this arrangement, may be used with nearly 
equal force to show that the executive and the legislative body 
should hold their places for life. In some respects, there would be 
even greater propriety in establishing this rule in the latter than in 
the former case. For the chief magistrate and the popular deputies 
stand in the midst of the party conflicts of the day, and if we wish to 
protect them from the storms of political life, that so their judgments 
may not be swerved from the path of rectitude by the changeable 
currents of opinion, no way would seem so effectual as to withdraw 
them from this influence. There may be the most solid reasons why, 
in a monarchical government, the judges should be independent, in 
the English sense of the term; and yet these reasons may be inap- 
plicable in a republic, and not have sufficient force to lay the 
foundation of a general maxim. That only is entitled to the dignity 
and value of a maxim which, although it may not be applicable to all 
circumstances, and to every condition of society, is yet applicable to 
the most perfect disposition of the subject matter which we have to- 
deal with. 

In Great Britain and France the executive magistrate is a heredi- 
tary officer, and the appointment of the judges is vested in him. The 
only plan, therefore, of creating anything like an independence of him, 
is to make the tenure of their office permanent. The only alternative 
is between removability at the pleasure of the king, and a tenure for 
life. The last plan has been adopted, in order to produce an effect 
which, in a country of free institutions, is unnecessary and out of 
place. As the station which the king holds is so far removed from 
the wholesome influence of public opinion, the judges, if dependent 
upon him, might be subservient to his worst designs. The influence 
of the crown would be felt every where: in the walks of private life, 
as well as in political affairs. So great an authority centered in one 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



349 



person, might render him the preponderant power in the state. By 
breaking the link of connection from the moment the appointment is 
made, there may be good ground to expect that the judges will feel a 
due sense of responsibility to the community which they are appointed 
to serve. 

For what we intend, or should wish to intend, when we reason in 
favor of the independence of the judges, is that they should be freed 
from the control of any individual; that they should not be subjected 
to any species of personal influence. But this by no means implies 
that they should be independent of the society or community whose 
interests they are designed to administer. The two things have been 
constantly confounded, although, in reality, they differ from each 
other in most respects. If in the United States the appointing power 
was a hereditary body, or one elected for life, the analogy would hold. 
It would then be necessary to render the judges independent of that 
power, in order to secure their dependence upon, and responsibility to, 
the people. But if the appointing power is itself chosen by the peo- 
ple, for a short term, a tenure for a limited period may not only be 
compatible with the independence of the judiciary, it may be the true 
way of reconciling that independence with a due sense of responsibi- 
lity. If the term independence of the judiciary does necessarily 
mean an emancipation from the control which electoral government 
imposes, the people of America would be led to pull down the whole 
fabric of the institutions which they have constructed, in order to 
introduce so salutary a principle into all departments. 

Notwithstanding the independence of the judiciary, as understood 
in Europe, is an anomaly in some of the American constitutions, 
there are some circumstances which have caused it to work well in 
practice. 

First. The pursuits of a judge are of a highly intellectual character, 
and all intellectual pursuits exercise a favorable influence upon the 
character. They have a decidedly moral tendency. Although the 
investigation of legal questions may not contribute to open and invigo- 
rate the understanding so much as some other mental occupations, it 
assists powerfully in strengthening the moral qualities. The duties 
which the judge is called upon to discharge, consist in the application 
of the rules of morality to the affairs of real life, and are therefore 
calculated to impress his whole behavior with an air of seriousness 



350 



NATURE AND TENDENCY 



[book m» 



and conscientiousness. To be called to act as umpire in the numer- 
ous and important controversies between individuals, to sit in judg- 
ment upon the life and reputation of a fellow being, to hold the scales 
of justice with a firm and unfaltering hand: these are duties of no 
common import, and except in natures very illy formed, are every way 
fitted to purify and elevate the character. The judge too is removed 
from the scene of party conflicts, nor is it expected that he will mingle 
in all the gaiety and frivolity of fashionable life. He is thus placed 
out of the way of temptation more than other men, and is insensibly 
beguiled into a train of conduct the most favorable for the practice 
of both public and private virtue. 

Second. The system of judicial precedents acts, to a considerable 
extent, as a check upon the conduct of judges. As it is necessary 
that there should be rules to restrain private individuals, so it is also 
necessary that there should be a law to restrain the court, and prece- 
dents constitute that law. The respect for cases which have already 
been adjudged, although it should never be carried so far as to render 
them absolutely binding, prevents any marked or habitual derilection 
of duty. The profession are apt to be keenly attentive to both the 
motives and the reasons of the bench, when it undertakes to over- 
throw a decision which has grown to be a principle ; and in this way 
a system of responsibility is created, which, in the case of all other 
public functionaries, can only be brought about by short terms of 
office. 

These views are of considerable importance in surveying this inte- 
resting question in all its parts. But they rather show that there 
are some compensatory contrivances incident to the system, than that 
the system is as perfect as it may be made. The theory of compen- 
sations is sometimes of inestimable value. It is even our only 
resource, where the structure of society is of so fixed a character as 
to give us a very limited control over the political institutions. But 
if these contrivances will not always continue to act with effect; if 
they do not cure all the defects which it would be desirable to reach; 
above all, if the society in which we are placed presents entirely new 
materials, it may be the part of wisdom to endeavor to reconstruct, in 
part, a system which has grown up under other and very different 
circumstances. To permit it to stand forever in the same position, 
would be a confession that what we term compensations are some- 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



351 



thing which makes amends for our own want of foresight and ability, 
rather than for any inevitable fault in the system itself. 

Public opinion in America was at one time universally in favor of 
the independence of the judicary. In some parts of the union, 
there are at present many individuals of the greatest intelligence 
who are firmly attached to the scheme. They believe that the most 
untoward influences may be brought to bear upon the administration 
of justice, unless this is inserted as a fundamental principle in the 
government. My own opinion is, that once a nation has entered upon 
the task of self government, it is bound to encounter all the perils 
which are incident to it ; and that these perils, numerous as they are, 
are among the means provided for preserving the integrity of the 
system. A nation which has once fairly entered upon this arduous 
career, has overcome the principal difficulty ; all other obstacles will 
be surmounted as the people grow into the system. Perhaps many 
of the mischiefs which now incommode society, are a consequence of 
the rubbing together of old and new ideas. But when the new ideas 
become a thing of familiar apprehension and of daily exercise, the 
minds of men will take a wider survey of the whole field of experi- 
ment, and acquire more confidence in the results which may be expec- 
ted. And this increase of confidence will add strength to the institu- 
tions — will give them the very support which they stand in need of. 
Nothing throws so many obstacles in the way of self government, as a 
denial of the right and ability of the people to engage in it. If on the 
other hand these are frankly conceded, and all intelligent men lend 
their assistance in carrying out the plan, every thing will go eas} T . 

An election for a term of years may be necessary, to enable the 
mind of the judge to keep pace with the general progress of know- 
ledge, and more especially to make him acquainted with the diversified 
working of the institutions under which he lives ; in the administra- 
tion of a part of which he is engaged, but all parts of which are 
thoroughly connected. A public officer may be wonderfully skilled in 
all the mysteries of his profession, and yet lag miserably behind the 
age in which he lives. It is a great mistake to suppose, that because 
the judges are called to expound the principles of an abstruse science, 
that they should be insensible to the general movement of the age 
and country in which they are born; that they should live in society, 
and come perpetually in contact with the practical concerns of men, 



352 



NATURE AND TENDENCY 



[book in. 



and jet be unaffected by the influence of public opinion. There is a 
very wide difference between being drawn from the path of rectitude 
and duty, by every temporary gust of party spirit, and submitting 
the mind to the healthful influence of those opinions and feelings 
which grow up in the progress of every improving society. The first 
unhinges the mind ; the last refreshes and invigorates it. There is no 
public magistrate whose mind will not be enlarged and liberalized, 
whose views will not be rendered both more wise and just, by catch- 
ing something from the influence of that public opinion which 
constitutes, to so great an extent, the regulative principle of so- 
ciety. There is no art, or calling, or profession, which is not 
greatly modified in practice through the instrumentality of this influ- 
ence. But when the judge is sure, provided he commits no technical 
violation of duty, that he will retain his station for life, he is very apt 
to regard himself as entirely absolved from this control. And although 
he may not outrage the law in a single instance, he may give evidence 
of the narrowest views and the most rooted bigotry, which, although 
unpercieved by himself, will give a tinge to the whole administration 
of justice. There is always a vast amount of large and enlightened 
views ; and these popular ones too, pervading every society in which 
free institutions are established, which do not deserve to be treated as 
mere algebraical quantities ; for although they do not exactly consti- 
tute the principles of any particular science, they surround every 
science and profession which have to deal with the interests of men, 
and afford light and assistance at ever step which we take. 

But the chief argument in favor of a limited tenure of office, is de- 
rived from the peculiar character and functions of a court of justice : 
so different from what they appear to be in theory, and so different 
from what they are actually supposed to be from a cursory observa- 
tion. Such a tribunal does in effect partake, to a great extent, of 
the character of a legislative body. The idea commonly entertained 
is, that it is simply invested with the power of expounding the laws, 
which have been ordained by another and a distinct department of 
government ; and this office it does undoubtedly perform. But this 
power of expounding comprehends a great deal, and reaches much fur- 
ther than is generally imagined. It at once communicates to a court 
of justice, the double character of a legislative and judicial tribunal. 
This is inevitable, and arises from the inherent imperfection which 




CHAP. VII.] 



OF FREE INSTITUTIONS. 



353 



attends all human institutions. It is not in the power of any collec- 
tion of men, formed into a legislative assembly, however fertile in 
resources their understandings may be, to a system of ready-made rules 
which shall embrace all, or any thing like all, the cases which actually 
occur. The consequence is, that a judicial tribunal which has been 
created with the avowed design of applying the laws as they are made, 
finds itself engaged in an endless series of disquisitions and reason- 
ings, in order to ascertain the precise rule which is applicable to any 
particular case. The innumerable contracts, voluntary dispositions, 
and delinquencies of individuals, are perpetually giving a new form to 
private controversies, and present new views and new questions to the 
examination of the court. However full and however minute the code 
of laws may be in its provisions, a vast field is still left open for the 
exercise of the reasoning powers, and the sound discrimination of the 
judges. The cases of the " first impression," as the lawyers term 
them, are as numerous now as when Marshall and Kent took their 
seats upon the bench. It is not a reproach to the legal profession, 
that this should be so ; it is merely a curious and interesting fact in the 
history of jurisprudence, that the exigencies of society, the ever vary- 
ing forms into which the transactions of business are thrown, should 
ramify to such an endless extent the rules which regulate the conduct 
of individuals. Perhaps it is no more than happens to every other 
department of knowledge ; for every conquest which science makes, 
every fresh accession it receives, only presents a new vantage ground, 
whence the mind can see further and take in a wider scope than it 
did before. But in jurisprudence, the experiments which are made 
are infinitely more numerous than in any other science ; and this con- 
tributes to modify and to attenuate, to a wonderful extent, the rules 
which have been made and the principles which have already been 
adjudged. For every question which arises, every case which is tried, 
is a new experiment which lays the foundation for new views and new 
analyses, and which the finer and more subtle they are, the more they 
escape from the grasp of general principles, and the greater the dis- 
cretion which is conferred upon the courts of justice. 

It is sometimes supposed, that all the decisions which are now 
made, all the rules which are declared, are mere deductions from the 
same general principles which had been previously settled. But how 
far back, and by whom, were these principles settled ? Not by the 
23 



354 



NATURE AND TENDENCY 



[book III. 



legislature. The greatest genius which had devoted itself exclusively 
to the task, would be incompetent to its performance. Hence the 
laws are comparatively few, while the books of jurisprudence are im- 
mensely voluminous. The human mind is able to invent very little. 
Its true employment consists in the observation and analysis of phe- 
nomena, after they have been developed, and in there binding them 
together into classes. And as this process of development, in the case 
of jurisprudence, is constantly going on, after as well as before the 
legislature have passed the most comprehensive laws, the functions of 
the judge, do what we will, or turn the question in whatever aspect 
we please, are compelled to bear a very close analogy with those of 
the law-making power. If all the rules which are now declared by 
the courts are mere corollaries from the statute book, or from previ- 
ous adjudications, the same may have been said one or two hundred 
years ago, and then what is the meaning of that vast accumulation of 
learning which then exercised, and still continues to exercise, human 
ingenuity ? Admitting that there are some sciences, where a few ele- 
mentary truths being given, the whole mass of subordinate principles 
may be readily evolved from them — a proposition which may require 
further investigation, before it is admitted — yet, this cannot be the 
case with jurisprudence, which does not deal with abstract proposi- 
tions simply ; but with a state of facts, where the question is per- 
petually recurring — what does human experience prove to be the 
wisest rule, which can be adopted ? or what does it prove to be the 
wisest construction of a rule already in existence ? 

Profound writers, and among others Leibnitz, and Dugald Stewart, 
have supposed that jurisprudence might be reduced to a regular and 
exact science, in which all our conclusions may be deduced with 
absolute rigor, and with the force of demonstration from certain pre- 
viously established principles. But to the question, how numerous 
shall these principles be, the most acute understanding can give no 
satisfactory answer. In every department of moral science, in order 
to be able to range a case under any particular principle, we must 
first go through a process of analysis more or less tedious. The prin- 
ciple may be taken for granted, and yet its applicability be determi- 
nable only after much investigation. If it is not only applicable to 
the whole extent, but requires to be modified, a thing of common 
occurrence, the foundation is immediately laid for a host of other 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



355 



principles, equally authoritative, and each claiming to control all the 
cases which can be brought under it; until at length, the process of 
analysis being pushed still further, these principles give way before 
others still more numerous, which assume to be the guide, because 
they are more exactly applicable to a given state of facts. So that, 
admitting the great value of what are termed general principles — and 
hardly any one will deny it — what a wide field is notwithstanding 
opened to human ingenuity in tracing out the fine analogies which 
may connect a given controversy with an elementary truth. How 
different may be the judgments of different minds equally astute and 
ingenious, when exercised upon precisely the same state of facts. The 
functions of the court will still be resembled to those of a legislative 
body. There will be ample room for the operation of sinister motives, 
which will both warp the judgment and blind the moral vision. And 
the position which I have endeavored to enforce, will be true : that if 
it is not wise to confer a permanent tenure of office upon the execu- 
tive and legislative, it should not be conferred upon the judiciary ; 
and the more so, because the legislative functions which the last 
perform is a fact entirely hidden from the great majority of the com- 
munity. 

It is remarkable that some very enlightened minds should be so 
wedded to the independence of the judiciary, when in the nature of 
things, men must sometimes be elevated to the bench who are deficient 
in both the moral and intellectual qualities which are requisite : and 
when the only remedy which can be applied consists in re-eligibility. 
I, for one, protest against the adoption of a principle, which would 
secure an incompetent or badly-disposed judge in the possession of 
his place, for thirty or forty years, because he committed no flagrant 
violation of duty. It is not always a reflection upon the wisdom of 
the appointing power, that an improper person has been elected. 
Very excellent lawyers have sometimes made indifferent judges; and 
lawyers not the most eminent, have sometimes become very distin- 
guished judges. Nor are the moral qualities of the man always 
sufficiently developed, to assure us what his future conduct will be, if 
he is placed for life in a situation of even tolerable ease. The exper- 
iment however must be made ; and our only alternative is to provide 
a plan by which an unworthy or ignorant judge may be removed, as 
well as a fit one be continued in office. And admitting that no 



356 



NATURE AND TENDENCY 



[book III. 



scheme will be entirely successful in accomplishing either the one 
or the other, I do suppose, that none which can be invented will 
answer all the ends which we are in search of, as an election for a 
moderate term of years. 

The purity of character and the eminent learning of the English 
judges have always been the subject of commendation, and certainly 
it does not become any one who is not furnished with the most exact 
information, to detract from this high praise. That the English 
judges, as a body, have been superior to those of the states of conti- 
nental Europe, may be conceded ; but at the same time it is clear 
that there may be numberless improprieties and aberrations from the 
strict path of duty, which the exceedingly technical character of the 
English system of procedure would entirely conceal from the public 
eye. Moreover, the English bench is connected with the aristocracy. 
The two institutions are glued together. And whenever society is 
distributed into distinct classes, it is difficult for those who are out of 
a particular class to penetrate into its interior, so as to observe and 
understand every thing which is transacted within it. It is only inci- 
dentally that we are able to catch any thing which sheds light upon 
the manners of English judges. 

The peculiar interest which attached to the life of Savage, caused 
his biography to be written by one of the most remarkable men of 
the day, who has related the very extraordinary behavior of the judge 
who sat upon the trial. An eminent Englishman, in his sketch of the 
life of Lord Ellenborough, has detailed the high-handed course which 
that eminent judge pursued on the trial of some very important state 
cases. 

In France, where the tenure of the judges is the same as in Great 
Britain, it has always been the custom for suitors to visit the judges. 
The practice, to say the least, does not look well. It may not be 
attended with any improper influence. But a violation of decorum is 
often a stepping stone to the commission of some graver fault. The 
system of bribery, once universally in vogue, may have been entirely 
abandoned, but an intelligent traveler who lately attended the trial of 
a case in a French court, tells us that he saw the judge who presided 
driving the splendid equipage in which a few days before the successful 
suitor traveled to the assizes. 

Indeed if one were disposed to look to England, to furnish us with 



CHAP. VN.] 



OF FREE INSTITUTIONS. 



357 



a body of experience, which would help to decide this interesting 
question, we might find arguments in favor of the absolute dependence 
of the judges, as decisive as those which are employed on the opposite 
side of the question. For the chancellor, the judges of the admirality, 
and of the ecclesiastical courts, are removable at any time, and yet 
these magistrates have been in every respect equal to their brethren 
of the common-law courts. 

The judicial system of the American states, differs in many respects 
from that established in Great Britain. As civil government is not 
understood to exist for the purpose of creating a splendid and impo- 
sing pageant of authority, all the institutions are made to administer 
in the most easy, effectual, and unostentatious manner, to the practical 
wants of the community. To cause justice to be dispensed thoroughly, 
extensively, and with the least cost and parade, has been the govern- 
ing idea in the organization of the courts. It is not enough to pos- 
sess such tribunals, unless they are completely within the reach of 
every one who has a complaint to make before them. England, and 
Wales, with a population of eighteen millions, have about twenty 
judges assigned to the superior courts. The United States, with a 
population a little larger, have more than two hundred. 

I take no account in the enumeration of the county courts, courts 
of request, and other subordinate tribunals, which are established in 
the former country, since the business transacted by them all falls 
within the jurisdiction of justices of the peace in America, whose 
numbers amount to many thousands. I simply confine myself to those 
courts, which in the two countries exercise a corresponding jurisdic- 
tion. The disparity there is immense, and it is a fact full of interest 
and instruction. No man who is not clad in an armor of gold can 
gain entrance into the English court of chancery : and no man can 
litigate effectually in the king's bench, or common pleas, unless his 
circumstances are very independent. Very different is the state of 
things in the United States. Local courts, of a high as well as of an 
inferior jurisdiction, are established throughout the whole country; 
and amply compensate by their intrinsic utility for the want of pa- 
geantry and show. But this consequence follows, that however easy 
it may be to select twenty men with splendid salaries, to occupy very 
imposing stations in the goverment ; it may be a matter of very con- 
siderable difficulty to induce two hundred to accept office, where the 



358 



NATURE AND TENDENCY 



[BOOK III. 



duties are unremitting and arduous, the salaries low, and where the 
occupation, although of an intellectual character, is yet seldom suffi- 
ciently so to fill the mind and to gratify a high ambition. The law 
being an exhausted science, so far as regards the leading princi- 
ples, the business transacted by the courts becomes one chiefly of 
detail, not requiring faculties so high as formerly, but demanding 
more patience and assiduity, and a greater degree of tact in the per- 
formance of the duties. What is sought after in America, and what 
should be the object of pursuit in every other civilized state, is a 
judicial system which shall do the business, the whole business, and 
nothing but the business ; and this in the most prompt and effectual 
manner practicable. And this end cannot be attained without the 
establishment of numerous courts of superior jurisdiction, and without 
therefore running the risk of sometimes procuring incompetent persons 
to act as judges. The average number of court days in each of the six 
circuits in England (exclusive of London) is one hundred and thirty-five. 
The average number in each of the fifteen circuits in the single state 
of Ohio, whose population is not more than two millions, is one hun- 
dred and sixty-three. It is no wonder that want of time to try the 
case was assigned as one reason for proceeding by impeachment, 
rather than by indictment against the late Lord Melville. That the 
risk incurred in selecting proper persons to set upon the bench in 
America has turned out to be much less than was calculated, may be 
matter of surprise : but that it will always exist to some extent, is a 
decisive reason why the judges should be chosen for a term of years. 
Even in England, we are assured upon very high authority, that not 
more than twenty lawyers can be found competent to fill the place of 
"puisne" judge. But if the courts were more numerous, and the 
demand for ability greater, there can be no doubt that the supply 
would keep pace with it ; and that there would be no more difficulty 
in obtaining two hundred, than there is now of obtaining twenty 
judges. 

At the present day the tenure for life is abolished in nearly one 
half of the American states. The term of office varies considerably 
in different parts of the Union. In Pennsylvania it is fifteen years, 
while in Vermont it is only one year. In the greater number the 
period is seven years. So far as we may judge from the books of 
reports, I do not know that any courts have given evidence of more 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



359 



solid and extensive learning than those of New J ersey, where the 
duration of the office under both the late and present constitutions is 
eight years. And Indiana, where the system is the same, furnishes 
the example of a very young community immediately springing for- 
ward in this career of improvement. The decisions of her supreme 
court are also marked by uncommon ability and learning. 

In Pennsylvania, the system has been recently adopted ; but there 
is every reason to believe, that her courts will continue to maintain 
the high reputation which they have hitherto enjoyed. In Connecti- 
cut, it is quite remarkable that before the independent tenure was 
introduced, and when the elections were annual, the bench was emi- 
nently distinguished for the learning, ability, and integrity of the 
members who composed it. I believe I do not exaggerate, when I 
say that five or six of the judges who sat in her superior court prior 
to the constitution of 1818, would have done honor to any of the 
courts of Westminster hall. By causing the administration of justice 
to penetrate every part of the community, the conduct of the judges, 
in America, is submitted to a more thorough observation and scrutiny, 
by the public at large, than in any other country. And as it is the 
people, and none but the people, who are interested in the upright 
and impartial administration of the laws, an unworthy man who has 
fortuitously wriggled himself into office, will stand an uneven chance 
for re-election. 

For what period shall the judges be elected ? is a question to which 
different minds may give different answers. Nor is it very important 
what the precise period shall be. Once the system of responsibility 
is established, we have made sure of the ruling principle which is to 
guide in the constitution of the courts, and the greater or less exact- 
ness with which it is applied, is a matter of minor consideration. I 
should say that the term should not be less than five, nor more than 
ten years. One reason why the members of the legislative body are 
elected for so short a period as one or two years, is to introduce the 
great body of the citizens to an acquaintance with public affairs, and 
to cultivate in them an ability to take part in their management. 
Free institutions are a security for the preservation of liberty, only 
because they lay the foundation for that discipline of the character, 
which enables us to know and appreciate what liberty is. But the 
law is a science which, no more than theology or medicine, can be 



360 



NATURE AND TENDENCY 



[book m. 



made the study of the great bulk of the people. It is necessarily the 
exclusive pursuit of a small number, whose training and education? 
both before and after they are admitted to the bar, is obliged to take 
a direction which conspires to a single end. The legislature is a 
numerous body : the free and discursive character of the debate, and 
the large dimensions which very many questions assume, force upon the 
mind of almost every member some tolerable acquaintance with their 
purport and bearing. But a single controversy at the bar, in order 
to be grasped, may demand the most minute and painful attention of 
even the professors of the science : so much so, that it is not at all 
uncommon for a lawyer who has been present, but not engaged in a 
particular trial, to feel himself at a loss, if he undertakes to give a 
distinct account of the testimony, and of the precise legal questions 
which were mooted. It is not because the law is a cabalistical sci- 
ence, that it is full of perplexity ; it is because it deals so much in 
detail, and because it is impossible to get rid of this detail, when we 
are obliged to apply our knowledge to the multifarious transactions of 
human life. The general principles by which the mercantile body 
conduct their affairs, are pretty much the same every where ; yet how 
much caution, attention, and sagacity, are sometimes necessary in set- 
tling a long and intricate account, even where no difficult, legal ques- 
tion intervenes. I would, therefore, make the tenure of the judges 
long enough to induce lawyers of competent ability to abandon the 
profession in exchange for that office ; while at the same time, I would 
not make it so long as to absolve the judges from a strict responsi- 
bility to the community. I would rather increase the salaries, than 
part with the dependent tenure. 

The manner in which the laws are administered, the exterior de- 
portment of the bar and bench, are a matter of very great importance. 
The business habits which are acquired by an experience of some 
years, insure promptitude, skill, and dispatch, in the decision of legal 
controversies. The trial of cases is conducted with ease, order, and 
regularity. The confidence of suitors is greatly and justly increased 
by thi3 circumstance. Instead of altercations between the judge and 
the advocate, which so much disturb the regular course of business, 
and detract from the weight of the court, every thing proceeds in an 
even and regular manner. Integrity of purpose is not of more conse- 
quence than ability ; for without knowledge, there is no room for the 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



361 



exercise of integrity. A judge may intend very well in the general, 
and yet be unable to mean any thing distinct, when it becomes all 
important for him to act and to make his integrity apparent in the 
things which he does. The term of office, therefore, should be long 
enough to enable the public to make a fair trial of the ability and 
moral qualities of the incumbent ; and not so long as to prevent a 
removal in a reasonable time, if he is deficient in either. 

I have referred to the system of legal precedents, as constituting a 
salutary check upon the conduct of judges. It now becomes neces- 
sary to approach this subject more closely, and to explain distinctly 
the view I have taken; in order that we may be able to understand, 
in its full extent, what is the force and operation of precedents. But 
if any thing is said which goes to qualify the proposition I before laid 
down, the reader must not therefore run away with the idea that there 
is contradiction. Political philosophy has to encounter the same 
difficulties which beset jurisprudence. Our principles have to be 
constantly modified, but they are not therefore to be dispensed 
with. 

When one considers the vast amount of adjudged cases which are 
already reported in the United States alone, it is obvious that the 
utmost attention and patience may be necessary to decipher them, 
when they are appealed to as rules, or as mere guides in the deter- 
mination of particular cases. They will be a very ineffectual check 
upon one who is unable to seize their import, and to appreciate them 
for exactly what they are worth. The principles of jurisprudence in 
almost every one of its departments, have been so exceedingly rami- 
fied by the multitude of similar, or very nearly similar controversies, 
that the shades of difference between different precedents are often so 
minute, as to hold the judgment in suspense as to which should be 
relied upon. And yet they may conduct to totally different conclu- 
sions in a given case. The consequence is, that a very considerable 
proportion of the cases which are actually decided, might be deter- 
mined either way with a great show of reason, and with a like reli- 
ance upon precedents in either case. This observation will startle 
the general reader, but it will not fail to be comprehended by the 
learned and experienced jurist. Nor is it more remarkable than what, 
if it be not true, is daily exhibited in all courts of justice, to wit, the 
appearance of lawyers of known integrity, on different sides of a case, 



362 



NATURE AND TENDENCY 



[BOOK III. 



each arguing with zeal and perfect conviction for the correctness of 
the views he advocates. Persons who are imperfectly informed, be- 
lieve that this practice is totally inconsistent with the uprightness 
which should belong to the members of any profession. Others look 
upon it as something which can be explained in no way whatever. 
But in truth it is not imputable to dishonesty, nor is it incapable of 
reasonable explanation. It is a natural consequence of the nature of 
the science, which having to deal with an infinity of detail, necessarily 
runs out into an infirmity of deductions and conclusions, which per- 
petually modify and cross each other. Independently of a number of 
cases which are settled out of court, by the advice of the profession, 
and of a number which might be equally settled in the same way, 
there are still a greater number where the principles appealed to on 
either side are very evenly balanced. 

But this very important consequence follows : that in many cases 
where the distinctions are fine, and the authority of precedents is half 
obliterated, an ill-disposed judge may cast his prejudices into the 
scale in order to decide the controversy, without his motives being 
suspected by any one, or if suspected, without the possibility of being 
detected. The judge who has a competent share of the pride of 
human opinion; the lawyer who believes that jurisprudence is a 
science, "par excellence," a science of strict and immutable rules, may 
demur to these views ; but I am satisfied they will gain the assent of 
a majority of both the bench and the bar. And if they are well 
founded, they afford powerful reasons why the judicial tenure should 
not be for life. By submitting the conduct of the judge, during a 
limited period, to the observation of the public, in those instances 
where his motives and reasons will be apprehended, the probability is 
less that he will on any occasion, free himself from the restraint 
which a sense of duty should invariably impose upon him. The 
public feel as if they had no right to scan the conduct of a public ma- 
gistrate who has a freehold right to his office. He is protected from 
all intrusion of this kind, except where he is guilty of some open 
delinquency. An election for a term of years removes this indisposi- 
tion on the part of the public to observe the course which the admin- 
istration of justice takes. The judge, sensible that his actions are 
the subject of attention, and not knowing to what extent this scrutiny 
may be pushed, becomes more circumspect in his conduct ; and as it 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



363 



is difficult to impress two contradictory habits upon any one, whether 
public or private individual, his conduct will more readily conform to 
that one which is dictated equally by self interest, and by a regard 
to duty. 

I have not yet adverted to another, and a deeply interesting ques- 
tion : whether the judges should be elected directly by the people, or 
by an intermediate authority. The last is the plan adopted in the 
great majority of the American states, as well as in the government 
of the union. But the intermediate body which appoints, is not the 
same in all these instances. In Maine, Massachusetts, and New 
Hampshire, the appointment is made by the governor and council. 
In eight states, as well as in the federal government, the executive and 
senate appoint. In rather more than one half of the states, the 
election is made by the two branches of the legislature. Delaware 
stands alone in this respect, for the governor has the sole power of 
appointment. 

The great object to be obtained in organizing the courts, is to 
select persons who are every way qualified to discharge the duties. 
But the qualities which are requisite in a judge, are different in many 
respects from what are demanded in any other public officer, and the 
selection is proportionally more difficult. It is not because the ability 
of the people to make a fair choice is distrusted, that this power has 
been delegated; it is because they are supposed not to have the op- 
portunity of forming a correct judgment. The seat of government 
is the place where information from all parts of the state is collected, 
and where abundant materials exist for forming a proper estimate of 
the qualities of candidates. Members of the legislative body are 
properly elected in districts in which they reside ; and these districts 
are of so convenient a size, that the qualifications of the candidates 
are under the immediate observation of the electors. With regard to 
the governor, whose duties in most of the states are few, it is not 
necessary that he should be versed in any particular science, though 
no species of learning or accomplishment is amiss in any public 
officer, but adds greatly to his reputation, and gives illustration to the 
state over which he presides. The case of the judges differs materi- 
ally from both these classes of public officers. The learning and ac- 
complishments which are demanded of them are of such a character, 
that the great body of the citizens are neither desirous nor have any 



364 



NATURE AND TENDENCY 



[BOOK III. 



interest in acquiring them. As an individual therefore of the 
soundest judgment and the fairest intentions, who has not within his 
reach the information upon which he desires to act, deputes another 
to act for him, so the American people, for similar reasons, have dele- 
gated to agents immediately responsible to them the difficult task of 
selecting fit persons to preside in the courts of justice. That an indi- 
vidual voluntarily avails himself of the intervention and services of 
another, is proof of his liberty, not of his constraint : that a whole 
people should proceed upon the same obvious and rational views, 
may denote the exercise of the most enlightened freedom. 

It must not be imagined, that in every instance where the public 
authority is delegated, the power of the people is therefore abridged. 
Rousseau was mistaken in supposing that, wherever the people act 
through the instrumentality of agents, they are free only during the 
moments of the election ; that the choice being made, power has de- 
parted from them, not to be resumed until the return of another elec- 
tion. This may be true to a greater or less extent in the artificial 
forms of government, where so many of the magistrates not being 
elective, but holding by hereditary title, wield an authority which 
counterbalances that of the people, and so effectually controls public 
opinion. But in a democratic republic, it is precisely the reverse. 
As the principle of responsibility runs through all the institutions, no 
one can escape from it in order to shelter himself under an indepen- 
dent authority. It is true that, construct government as we will, 
there will always be a tendency, in some part or other, to elude the 
control of public opinion. But where the great body of the institu- 
tions is sound, the utmost degree of exactness and theoretical pro- 
priety may be a matter of indifference : like an individual possessing 
a fine constitution, and robust health, and who does not take every 
sort of precaution against changes of the weather ; a people in the 
full possession of free institutions, need not guard themselves too ten- 
derly against every possible contingency. The intervention of a jury 
in all common law trials, renders such extreme scrupulousness less 
necessary in the constitution of the judiciary, than in that of the other 
departments. 

But a great revolution has just been effected in one of the Ameri- 
can states. The new constitution of New York has ordained that the 
judges of all the courts shall be elected directly by the people. This 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



365 



I regard as one of the greatest experiments which has ever been made 
upon human nature. This single feature in that constitution, stamps 
the convention which framed it as the most important which has ever 
sat in America since the formation of the federal constitution. . Nor 
can it be viewed as a hasty or visionary scheme, since the assembly 
which planned it was composed of an unusual number of able men ; 
of men who united, in a high degree, all the qualities which are neces- 
sary to make up the character of wise and enlightened statesmen : 
experience, sagacity, and information, and a desire to innovate for 
the sole purpose of reforming. No public measure which has been 
adopted in America has so powerfully arrested my attention, or given 
me more painful anxiety. The conclusion to which I have come, 
forming my judgment from the general character of the population, is, 
that if the experiment does not succeed, the people will cheerfully re- 
trace their steps. But I am strongly inclined to think that it will 
succeed. There is such a thing as making an institution succeed, 
however much it may appear to run counter to the received opinions 
of the day. This repugnance may be the only obstacle to success. 
If the people of New York persevere in the immense exertions which 
they have hitherto made, to educate themselves ; and if, in conse- 
quence, a thorough conviction is imbibed, not merely as something 
from others, but as realized by themselves, that an upright and en- 
lightened administration of justice is indispensable to the protection 
of their interests, I cannot doubt that the experiment will succeed. 
Mischiefs will exist, and precisely of the same kind as those winch 
now trouble the community : the disposition to centralization ; the ef- 
fort on the part of political leaders to control public opinion ; the sub- 
stitution of a constructive majority, in place of the real majority. But 
with a state of society such as is fast growing up from the operation 
of causes which I have referred to, I can easily conceive that these 
evils may be warded off as effectually, and perhaps more so, than un- 
der the old system. So important a movement can only be regarded, 
at present, as an experiment ; and it has been most justly remarked 
of the Americans, that they possess the faculty of making experiments 
in government, with less detriment to themselves than any other 
people. 

But any one who was attentive to the circumstances under which 
the New York convention assembled, and who watched throughout 



366 



NATURE AND TENDENCY 



[BOOK III. 



the course of the proceedings, must be sensible that there is a sound- 
ness of public opinion in that state which will prevail upon the people 
to retract, if the experiment is not successful. It should be observed 
however that the same constitutional provision exists in the state of 
Mississippi, and has been in operation for more than ten years. Even 
this experiment is too recent to enable us to pronounce a decisive 
opinion upon. The scale upon which it is made being so much 
smaller than in the other case, the plan has attracted very little pub- 
lic attention. But if it does succeed in both these states — if it suc- 
ceeds in New York alone — it will probably be adopted throughout the 
greater number of the American states. And I predict that it will 
then be the parent of more important changes, in both government 
and society, than have been brought about by any other single 
measure. 

The theory of the judiciary cannot be well understood unless we 
take into consideration the uses of jury trial, an institution which 
exercises so wide and salutary an influence upon the administration 
of justice. 

First. The juries act as a check upon the conduct of the judge. 
He discharges his most important functions not only in the presence 
of, but with the co-operation and assistance, of his fellow citizens. 
The jury are not chosen as in the Roman commonwealth, from a 
patrician body; they are taken indiscriminately from the great mass 
of the people. The responsibility is consequently increased; his 
deportment and actions are not merely observed by the spectator, 
they are narrowly watched by those who participate in the trial, and 
to whom is committed the ultimate determination of the issue. Ben- 
jamin Constant proposed that the juries should be selected from the 
class of electors: that is, from among those who pay a tax of from 
fifty to sixty dollars. And this is now the law. In Great Britain 
the qualifications of jurors are also very nearly the same as those of 
the electors. But the latter being much more numerous than the 
French electors, the jury is a more popular body. In America, the 
same reasons which led to the adoption of a liberal rule of suffrage, 
have also augmented the number of persons qualified to act as 
jurymen. 

Second. The institution of the jury introduces the great bulk of 
the people to an acquaintance with the practical working of the laws, 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



367 



interests them in their faithful administration, and contributes to train 
them to an ability for self government. " He only," it has been said, 
"is fitted to command, who has learned to obey;" he only is fitted to 
take the lead, who has already passed through the subordinate ranks. 

Third. The intervention of the jury helps to mitigate the extreme 
rigor of general rules, to give effect to the import of general maxims, 
and yet occasionally to make allowance for that infinite variety of 
shades in human transactions, of which the laws cannot take cog- 
nizance. 

Fourth. Juries stand in the place of impartial spectators, and are 
therefore well calculated to act as umpire in settling controversies 
among their neighbors. This is an office which could not be so well 
performed by a pre-existing tribunal. As I have already observed, 
it is an inestimable advantage which we derive from a regular judicial 
establishment, that it extinguishes the motives for private war, the 
most deplorable of all the calamities which can visit society. This 
benefit however would not be so perfect, if it were not for the jury, 
whose composition is such as to inspire general confidence in the fair- 
ness of all law proceedings. 

Fifth. The intervention of a jury gives publicity to trials. The 
disuse of the institution on the continent of Europe, consequent on 
the introduction of the Roman law, was the cause why the proceedings 
in a court of justice became secret. As long as the "prodes homines," 
the jury, were a necessary part of the machinery, judicial investiga- 
tions were a matter of curiosity to the public. As soon as they were 
dispensed with, and the whole evidence was collected in the form of 
depositions, legal controversies gave rise merely to a discussion of 
technical points, and the public no longer felt an interest in them. 
The halls of justice were thenceforth abandoned to the judge and the 
advocate. What was once a custom soon became a law, and at the 
present day, trials are for the most part conducted in secret, through- 
out the greater part of continental Europe. 

The nonintroduction, or rather the partial introduction of the civil 
law into England, accounts for the preservation of jury trials there, 
and for the remarkable publicity which law proceedings have always 
had. The fifty-fifth section of the French constitution of 1830, de- 
clares that the trial of criminal causes shall be conducted in public, 
except in those instances where publicity would be injurious to 



368 



NATURE AND TENDENCY 



[book III. 



decency and good morals ; and the court is bound to announce that as 
a reason for sitting in private ; — a very remarkable state of society, 
when it was reserved for a constitutional ordinance, to provide that 
the halls of justice should be thrown open to the inspection of the 
public. But jury trial was unknown in France until the revolution ; 
it is no part now of the procedure in civil cases. Its introduction in 
criminal trials is the reason why they have been rendered public. 
Not only was the examination in secret, but there could be no cross- 
examination ; for the only person entitled to ask questions was the 
judge. It is but recently that this unnatural custom has been put 
an end to, and that counsel on behalf of the prisoner have been per- 
mitted to assist in the examination. In Scotland, where the civil law 
has from time immemorial constituted the foundation of the jurispru- 
dence, juries were unknown until 1815, in any but criminal cases. 
They were then for the first time introduced as an experiment into 
one of the civil courts of Edinburgh ; and they are now a constituent 
part of the procedure in the court of session. The practice of con- 
ducting trials in public secures two distinct and very important ends. 
It operates as a safeguard against corruption, and it prevents the 
administration of justice from becoming odious to the people. In 
some parts of Europe, the criminal magistrates and officers are 
regarded with detestation and horror. They are looked upon as the 
instruments of an infernal tyranny; whom the innocent shun, and 
even shudder to approach. This is not the feeling in Great Britain 
or the United States. As the proceedings are conducted openly, the 
public may be said to take part in them. The fate of the criminal 
may be deplored; but every one feels that he is condemned rather by 
the public voice than by the sentence of the judge. 

There is one respect in which the institution of jury trial has been 
disadvantageous. It has caused the rules of evidence to be more 
strict than they would otherwise have been. The manner in which 
this has been brought about is very easily explained. The composition 
of juries originally, and for centuries after the institution took its rise, 
was such as not to permit the committing to them any evidence, which 
might by possibility be misinterpreted, or misapplied. Certain rules 
were consequently adopted, which shut out every species of testimony 
which, in order to be rightly used, would demand a degree of caution 
and discrimination which could not be expected in the persons who 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



369 



made up the jury. The evidence excluded (and which was denom- 
inated incompetent) might shed abundant light upon all trials, if it 
were confided to persons of judgment and good sense. But the con- 
dition of European society was generally low; and juries necessarily 
partook of the same character. The consequence is that the rules of 
evidence have been gradually molded into a system so exceedingly 
artificial and complex, that in the endeavor to correct one mischief, 
another equally dangerous has been incurred. A great deal of truth 
has been shut out, in order to prevent some falsehood from gaining 
entrance. And this system, having once taken root, has been con- 
tinued long after the state of things which occasioned it has passed 
away. The constitution of American society is such that juries are 
every way competent to the management of that testimony which is 
now declared inadmissible. By the Belgian code, lately promulgated, 
the only persons who are absolutely excluded from giving testimony, 
are the parties, relatives in the direct line, and husband and wife. 

At an early period of society, the human mind does not dare to 
trust itself with any but the roughest and the most general rules. It 
feels an utter inability to enter into long inquiries : to compare and 
to balance a great many items of testimony, in order to elicit the 
truth from the whole, instead of from a part. For fear of doing 
wrong, it shuts itself up within a narrow circle ; although the effect is 
to preclude a great deal of information and knowledge. But as so- 
ciety advances, the vision becomes more clear and distinct, and the 
rules which are framed for the conduct of every department of life 
are rendered more free and liberal. 

The Livingstone code of Louisiana, as originally drawn up, exclu- 
ded none as witnesses, except attornies and catholic confessors. Par- 
ties, however, were admitted with this limitation : their evidence could 
not be proffered by themselves ; but must be demanded by the oppo- 
site party, by the court, or by the jury. In England, and New York, 
efforts have recently been made to annul the distinction between com- 
petency and credibility : to permit parties and persons interested to 
testify in all cases, leaving their credit to be determined by the jury. 
And what sensible reason can be given, why parties should be per- 
mitted to testify in one form of proceeding, and not in another? in 
chancery suit, and not on a common law trial ? When the grand jury 
( "jury d' accusation " ) was introduced in France, the experiment for 
24 



370 



NATURE AND TENDENCY 



[book III. 



many years was deemed absolutely hopeless. It was found impossi- 
ble to make the members understand the distinction, between the find- 
ing of a true bill and a sentence of conviction. They supposed that 
the first involved the la3t, and often refused to find bills where there 
was the strongest " prima facie" evidence of guilt. No such misappre- 
hension exists among the English or American grand juries. Still less 
would there be any misunderstanding with an English or American 
traverse jury, as to the relative weight of the testimony, some part of 
which was unexceptionable, and another open to examination ; for the 
daily transactions of life, their ordinary business avocations, thoroughly 
initiate them into this manner of viewing and employing testimony. 
I think there can be little doubt, that in no long time, a more liberal 
system will be established, and that every one will be convinced that 
it conduces to a much more enlightened and satisfactory administra- 
tion of justice. 

The admission of the testimony of all those persons who are at 
present excluded (and I know of no case which should form an ex- 
ception) would diminish the number of suits, and in those which were 
tried, would cause the truth to be elicited more promptly and success- 
fully. Greater solemnity would be imparted to all judicial proceed- 
ings, when the evidence of persons who knew all about the transac- 
tion was thoroughly sifted, instead of applying, as is now the case, to 
witnesses who know very imperfectly or only by piecemeal. If a 
defendant in a criminal prosecution were in all instances examined, 
real delinquents would feel more terror of the law, and innocent per- 
sons would have greater respect for it. 

Whether the rule of unanimity, or that of a majority, should prevail 
in the finding of a verdict, is a question which has been much debated 
in France, since the introduction of jury trial in 1789. The rule of 
the majority has been constantly adopted there. By the law of 1789, 
this majority was fixed at 8 : 4. By that of 1791, at 9 : 3, and by 
that of 1835, at 7 : 5. And recently a proposition for another change 
has been discussed in the house of deputies, but I am not informed 
what the result has been. M. Isambert says, if the English rule of 
unanimity had been adopted in France, such men as Bailly, Lavoisier, 
and Malesherbes, would never have been condemned. The greater part 
of the judgments of the revolutionary tribunal were made by a fraction. 
M. Fermot has calculated, that where the majority is 7 : 5, the proba- 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



371 



bility of error is as 1 : 4, indifferently in favor of and against the ac- 
cused. Where it is 8 : 4, the chance of error is 1 : 8, and where 
unanimity is required, it is 1 : 8000. These are calculations which 
should make Englishmen and Americans prize the rule of unanimity 
even more than they have done. For although in the even tenor of 
ordinary times, there should be as little probability of error under the 
French as under the English and American rule, yet, when the ele- 
ments of society are greatly disturbed, and the minds of men are 
heated by party spirit, the jury, and the unanimity of the jury, are 
the shield of the innocent. Unanimity is attended with this advan- 
tage : it compels to more discussion and deliberation among the jury. 
The verdict which in practice is very generally the verdict of a ma- 
jority, is the result of a more patient examination, and is therefore 
more likely to be unexceptionable. In Scotland, the rule of unan- 
imity prevails in civil, and yet not in criminal cases : the reverse of 
what one would suppose should be the case. But the employment of 
the jury (composed of fifteen) in criminal trials, dates very far back, 
and was a distinguishing feature of Scotch institutions ; whereas, the 
jury of twelve, in civil causes, was copied directly from England; the 
court in which the experiment was first made was presided over by 
an English barrister, and nothing seemed so natural as to establish 
the English rule of unanimity. 

One of the greatest difficulties which attend the administration of 
the law, is the exceedingly technical character which the system has 
acquired. This is the chief of the popular objections which are ever 
made to it, and I am persuaded that it had great influence in carrying 
forward the plan of judicial reform in New York. The objection may 
be ill conceived, and yet the reform may prove to be salutary. For 
let us analyze our ideas. Does this character of technicality arise 
from the fact that the legal profession have been in the habit of 
following a principle, or has it arisen from an adherence to precedents. 
If the first is the case, the law differs in no respect from any other 
pursuit in which the exercise of mind is demanded, from the practice 
of medicine down to the most inconsiderable of the mechanic arts. 
One cannot conceive of administering justice in a civilized community, 
except upon some previously- established rules. But this difficulty 
presents itself: that where a science deals so extensively, and yet so 
much in detail, with the practical interests of men, as is the case with 



372 



NATURE AND TENDENCY 



[book iij. 



the law, principles which were at first broad, and clearly distinguish- 
able, become in the course of time, exceedingly ramified, and our 
distinctions are then so fine, that it is almost impossible to found a 
conclusion simply upon a rule of abstract justice. When this is the 
case, a new course is adopted, as subsidiary to finding the principle. 
The question then raised is, what does human experience as tested by 
a great number of adjudications, prove to be the best mode of applying 
the law, in those countless instances where the rule of right in the 
abstract seems to be indifferent ? As jurisprudence is eminently an 
experimental science, it is very important to ascertain to what extent 
a system of practice contributes to the public weal. Now, in innu- 
merable instances, precedents are looked to, because the abstract 
principle is so shadowy that it cannot be explored, and yet it is of 
infinite consequence, if we can, to cling to some rule which has a near 
affinity to a principle, while at the same time, a number of years of 
experience may bring the matter to a test, and enable the legislator 
to ascertain whether any and what changes will be advantageous. 
The frequent revisions of the laws in the American states is one effort 
to attain this end. And there is a further plan which would recom- 
mend that it should be made the duty of the judges to make annual 
reports as to the working of specified parts of the system. 

In administering this technical science then, the inquiry is, are we 
following a principle, or only a precedent ? If the former, how do we 
obtain the principle ? When it is asked, is it right to murder or steal ? 
the answer is plain enough. If it is asked, ought B to pay A a sum 
of money he borrowed from him ? the answer also is plain. But the 
instances are without number, where our principles become so dim 
that we are warned to pursue a new direction in order to find them. 
We are enabled to discover what is useful, by knowing what is right, 
and we are enabled to find out what is right, by understanding what 
is truly useful. The two are never disjoined. 

But whatever may be the cause of the exceeding technicality of 
the law, whether it arises from the adoption of principles, or the 
adoption of precedents, or from both together, as is undoubtedly the 
case, there is no possible way of avoiding it ; nor is there any one 
science, profession, or art, to which the same difficulty does not adhere. 
It is more apparent in the case of the law than in any other calling, 
because the science is applied in such infinite detail to the actions of 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



373 



men, and because this application is to so great an extent the subject 
of popular observation. That is to say, the very thing which stamps 
upon the law its character of excellence and utility, its application to 
the infinitely-diversified affairs of society, is the foundation of the 
objection, and the open and public administration of it is what gives 
occasion to the complaint. If the law were applied as sparingly as it 
is in despotic countries, it would lose this character of complexity 
immediately. It is in proportion as civilization advances, and the 
institutions become free, that our knowledge becomes both more full 
and more minute, and that every profession or art which springs from 
knowledge becomes more difficult in the management. This is doubt- 
less a wise dispensation of Providence : that in proportion as the 
temptation to abuse our power or our liberty increases, new bulwarks 
may be raised up to restrain our actions. 

But in what I have now said, I do not mean to be understood that 
a great deal may not be done to free the law from the artificial char- 
acter which it has acquired. On the contrary, I am persuaded that a 
field is here opened, in which wise and judicious minds may perform 
inestimable good for society. The abolition of the distinction between 
competency and credibility, as suggested by a former New York 
legislature, would go a great way. And the abolition of the various 
forms of action at common law, and the substitution of one simple 
form, as in chancery proceedings — these two alone, would sweep 
away a multitude of refined and artificial rules which now incumber 
the practice. But what I do mean to say is (and I know the exceed- 
ing difficulty of propounding or conceiving two things which appear to 
conflict, although, in reality, one only qualifies the other), that do as 
we will, make what disposition we please of jurisprudence, it is abso- 
lutely impossible, even if it were desirable, to free it from its character 
of technicality. This is a quality which will forever belong to it, so 
long as it has any pretension to the character of a science, and so 
long as it is understanding^ and uprightly administered. If we 
suppose all our present legal institutions destroyed, the courts 
abolished, the books of law burned, society a mere "tabula rosa" to 
begin again, new tribunals established, with directions to have no 
reference to any existing elementary works or precedents, a system 
would nevertheless, in process of time, grow up, quite as technical as 
that which now exists. One single circumstance, and yet one which 



374 



NATURE AND TENDENCY 



[book III. 



cannot be dispensed with, would insure this: to wit, the commanding 
that the decisions of all the higher tribunals shall be reduced to 
writing and published. English law never assumed a decidedly 
technical character, until this important safeguard was interposed 
between the courts and the public. And what, in the case supposed, 
will be the consequence of this admirable practice, independently of 
its operation as a check upon the courts? — that the minds of the pro- 
profession will immediately fall into a train of generalization. Certain 
fundamental principles will be grasped, a classification of them will 
be made, as applicable to different departments of the law, other 
principles subordinate to them will be seized, principles within prin- 
ciples, as in all other sciences ; and yet the last not evolved from the 
first, but only classed under them after the induction is made. The 
amount of business will increase, the pile of precedents will also 
increase, an abundance of elementary works will be written, embodying 
the decisions, and rendering the law more scientific in form, and yet 
more approachable and more intelligible to the profession. The same 
process will be gone through as heretofore. A fabric will be erected, 
vast, complicated, and full of labyrinths to the ignorant, and yet dif- 
fering in no one respect from any other system of knowledge, except 
in its more extensive application to the actual business of men. 

For what are technical rules? It is of the utmost importance to 
distinguish between what is artificial and what is technical. Every 
rule which is artificial is technical; but very many are technical with- 
out being artificial. A technical rule, then, is nothing more than a 
general principle. When we begin with it, in the case of A or B, 
there is nothing intricate about it ; it is more like a simple statement 
of the circumstances of the case. But the case of A or B soon comes 
to be the case of thousands, each varying in some particulars. Then 
our difficulty commences. The mind is compelled to look further, to 
extend its principles more and more, and yet at the same time to be 
minute and ever on the watch in its examination. As the research 
will embrace objects entirely new, a new class of ideas will be formed, 
and new names will be given to them. Or, as is very commonly the 
case, old and well-understood words will be used, and yet the con- 
nection in which they are found, although the most natural imagina- 
ble, will instantly give them a character of abstruseness. For 
instance, the words remainder and condition are ordinary English 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



375 



terms, familiarly used in common life. And yet what an infinite fund 
of learning is attached to them, of which there is no possible way to 
get rid, without encountering difficulties infinitely more formidable 
than those which are complained of. No man not a physician can 
understand the language of a physician. No man not a mathemati- 
cian, or chemist, or political economist, can understand them. Nay, 
no man not a mechanician, a horticulturist, or agriculturist, can go 
but a very little way along with those who have devoted themselves 
to these pursuits, and have made them the subject of direct applica- 
tion to the affairs of life. The language of every one of these persons 
is highly technical: because having bent their minds upon one parti- 
cular pursuit, they have obtained new ideas, have learned to classify 
them, and have given them appropriate names. How, then, should 
there be such exceeding difficulty in understanding why the law is, 
and forever must be, a technical science. No one can feel a greater 
interest than myself in seeing what is artificial in the law swept away ; 
but no one is more sensible of our utter inability to give it any other 
character than that of a technical science. 

The law applied to land titles in Virginia, and to the military districts 
in Ohio, is a remarkable example how vain all our efforts must be to 
communicate to any branch of jurisprudence a phraseology which 
shall be other than technical. This part of the law is almost exclu- 
sively the creation of the courts of Kentucky. It grew up when these 
courts were in their infancy, when there was no previously accumu- 
lated learning to help to give it a technical air, and in a state which 
was less disposed than any other to adopt any part of the refined 
system which prevailed in England, and other states. It is the only 
state, I believe, in which there existed a positive prohibition, not only 
to the reference to English reports as authority, but against reading 
them at all in court. The state of society was simple ; the commu- 
nity was composed of farmers ; the foundation of titles was different 
from what it was any where else ; so that it could borrow no assis- 
tance from the real-property law of Great Britain. Every thing 
was favorable to the building of a system which, if possible, should 
be free from technicality. But it was found absolutely impossible to 
effect this. The simplest elements of title, a warrant, an entry, and 
a survey, familiarly apprehended by all the settlers, and called by 
those names as soon as the process of legal investigation commenced, 



376 



NATURE AND TENDENCY 



[BOOK III. 



were recognized in every case, and yet in cases so endlessly diversfied, 
that a system of classification and of rules became speedily necessary 
in order that a court of justice should not be converted into the bed 
of Procrustes. For technical rules are adopted, not to obstruct, but 
to further the regular and just administration of the laws. This sys- 
tem, so perfectly unique in its principles, and yet reduced to so much 
precision, is a monument of the wisdom and ability of the courts of 
Kentucky. It has now nearly performed its office, that of settling 
land titles, and will hereafter be regarded, by those who are fond of 
looking into the history of laws and institutions, as a remarkable 
instance of the fertility of the human mind, and of its capacity for 
framing general rules, even where the materials are the most scanty. 

I can imagine one way in which the popular institutions of the 
United States may succeed in modifying, perhaps in entirely over- 
throwing, the vast system of technical jurisprudence which is now in 
use. The profession of the law may come to be regarded as an aris- 
tocratic institution. The path to it may be laid open, by admitting 
every one who pleases to practice, as is the case in some of the states 
with the medical profession. This by itself would effect very little ; 
for so long as a learned and enlightened system was upheld by the 
courts, it must be appealed to by all practitioners ; and the license to 
plead would be an empty privilege. The lawyer must still show his 
ability, in order to succeed. But in addition to this arrangement the 
judges may be selected, not from the class of jurists, but like mem- 
bers of the legislature, from the citizens indiscriminately. This last 
movement would at once sweep away all use of precedents; for it 
would be impossible to construct them. The law would cease to be 
a science, or a branch of knowledge. The administration of justice 
would be likened to that of a Mahommedan judge, who founds his 
judgments upon the circumstances of each particular case as it arises, 
who professes to be guided by the dictates of good sense merely; 
and whose appreciation therefore of the value of experience, as well 
as his notions of right and wrong, are the most crude imaginable. 

But first, there is less probability that the profession in the United 
States, will be regarded as an aristocratic institution, than there is in 
any other country. Lawyers do not compose a distinct corps. They 
are not collected in one great city, as is pretty much the case in 
England, and Scotland. They are dispersed over the whole country ; 



CHAP. VII.] 



OF FREE INSTITUTIONS. 



377 



and are not distinguished by any privileges from the general mass of 
citizens. I shall take occasion, hereafter, to notice more particularly 
this very remarkable feature of American society. 

Second, as regards the scientific character of the law, and the use 
of precedents : or what is the same thing, the appointment of persons 
to administer justice, who shall be capable of analyzing their ideas, 
of forming an intelligible exposition of their judgments; and then 
causing their opinions to be recorded, there is no way of dispensing 
with these things, unless we resolve to go back to a state of society 
different in so many respects from the high civilization which now ex- 
ists. We desire to free the law from its technicality, and we remove 
all check upon the judge. We wish to make the principles of law 
familiar to all the citizens, and we adopt a procedure which forbids 
that there shall be any principles whatever. The Mahommedan judge 
does as he lists ; he acknowledges the authority of no rule, nor the 
value of any experience. He is absolved from all regular control ; 
and the public have no insight into the motives or reasons of his 
judgment. What we term precedents, are in reality a great volume 
of human experience : and it is upon the wisdom which is gained by 
experience that free institutions are built, and by which they must 
be preserved. Indeed the system of precedents is peculiarly adapted 
to a democratic commonwealth, which seeks to establish equality, and 
demands that the same rules, wherever applicable, shall be applied to 
all the citizens equally. 



BOOK IV, 



CHAPTER I . 

ON WHAT IN AMERICA IS SOMETIMES TERMED THE VETO POWEK OF 

THE STATES. 

It seems difficult, at first view, to assign any reason completely 
satisfactory, why the judiciary should "be the final arbiter in determi- 
ning upon the constitutionality of the laws. For if we say that the 
courts are the expounders of the constitution, it may be answered, 
that the enactment of a law, involving a constitutional objection, is 
itself an exposition of the constitution, and that if the judges by 
repeated adjudications decide one way, the legislature by repeated 
enactments, reaffirming its own construction, may decide another. 
The difficulty does not consist in attributing to the judges the right 
to decide, since whenever a constitutional question is involved, the 
court must give a construction; it consists in making that tribunal 
paramount and supreme. It is perfectly correct to say, that the judi- 
ciary is invested with the power of applying the laws, but whether it 
has a right superior to the legislature in expounding them, does not 
appear so clearly. Nevertheless it is this very power of applying the 
laws, distinguishable as it is from that of expounding them, which 
has enabled the courts to assert and maintain the exclusive right of 
expounding them, and caused them to be regarded as the natural and 
ultimate arbiter in all such questions. The legislature declare the 
construction of the constitution; the judges not only make declaration 
of their construction, but in addition to this, they carry that declara- 
tion into execution. For the various executive officers, marshals, 



380 



NATURE AND TENDENCY 



[book IV. 



sheriffs, &c, together with the "posse comitatus," are appended to the 
courts, not to the legislature. Now it is plain, that that tribunal which 
is able to decide the law, and also to carry its judgment into imme- 
diate execution, must ultimately acquire the supremacy. When there- 
fore the question is asked, why is the judiciary the tribunal of dernier 
resort? the obvious answer is, that its office as such is the natural and 
necessary consequence of the manner in which the government is con- 
stituted. The question confounds two entirely different things, the 
theoretical propriety of the arrangement with the plain matter of fact 
that it does exist. Even if we were to admit that the first is open to 
debate, upon the second the door to discussion is closed. The legisla- 
ture in America bears to the courts the same resemblance which the 
present national government has to the old confederation. The present 
government acts upon persons, the latter acted for the most part upon 
states only. And the reason why this last did so act, was that (with 
a single exception) it was unprovided with courts to enforce the exe- 
cution of its resolves. The national legislature, now in existence, 
like the state legislatures, passes laws affecting the community at large, 
and the judiciary executes its decisions upon all the individuals in the 
land. The courts never arrogate to themselves the imposing authority 
of making general declarations. They act only in detail, and yet it is 
the exercise of this more humble duty which has rendered them the 
undisputed arbiters in construing the constitution. Humility and 
modesty in private life, often procure a high authority and reputation 
for those who practice them ; and it is fortunate when governments 
can avail themselves of the same salutary tendencies, in order to 
strengthen the authority of the laws, and to maintain order and 
tranquillity in the state. 

Notwithstanding the right to which I have referred sometimes 
affords matter for disputation in America, for although discussion is 
the proper office of the understanding, its place is often usurped by 
the feelings, yet nothing has struck foreigners with more admiration 
than the firm establishment, and the general recognition of the prin- 
ciple in America. It is a necessary consequence of the introduction 
of free institutions. For a constitutional chart is itself an act of 
legislation. It is the supreme law of the land. To determine there- 
fore upon the constitutionality of an ordinary enactment, there is the 
construction of any other enactment in which a question of constitu- 



CHAP, I.] 



OF FREE INSTITUTIONS. 



381 



tionality is not involved. It does not place the judge higher than the 
lawmaker; it only maintains the supremacy of the sovereign legis- 
lature, the people. 

And if the original propriety of this arrangement should he ques- 
tioned (its existence as a matter of fact being admitted), it may be 
answered, that all our knowledge is more distinctly apprehended when 
it is in the concrete, than when it is clothed with an abstract and 
general form. The legislature view the law in its general features. 
The courts deal with it in detail, and in its application to a particu- 
lar case. It is not because the judges have mental powers superior 
to the legislature, that the duty of deciding is devolved upon them ; 
it is because the form which the question assumes, distinct, and un- 
embarrassed by any extraneous matter, facilitates the process of 
analysis, and it is by this process alone that we are able to give pre- 
cision to our ideas, and certainty to our conclusions. 

But this power of deciding constitutional questions has a much 
wider application than I have yet supposed. The state courts decide 
upon the validity of state laws in reference to their own constitutions. 
The courts of the union do the same in reference to the federal con- 
stitution. But the supreme court of the United States is also the 
tribunal of last resort, for determining the validity of state laws, 
whenever these conflict with the federal constitution. And this, also, 
is a consequence of the structure of the government. The introduc- 
tion of the perfect form of confederate government, its substitution in 
the place of the imperfect form which formerly existed, has produced 
a corresponding change in the constitution of the courts, and given a 
new direction to the exercise of judicial power. As the laws of the 
union do not operate upon states, but upon individuals, the decisions 
of the courts do not act upon governments, but upon persons. 

One of the most striking features in the American government, is 
the double system of representation which it contains. It is a great 
achievement to introduce the elective principle into all the depart- 
ments of a consolidated government; to render the executive and 
judiciary, as well as the legislature, elective. But the American is 
not a consolidated, but a federal government. Separation has, there- 
fore, been made between the general and local interests. Each have 
been deposited in distinct governments, and the principle of repre- 
sentation has been established in both. The states are not mere 



382 



NATURE AND TENDENCY 



[book IV. 



municipal corporations, deriving their existence and franchises from 
the central government. Their separate jurisdiction is secured by the 
same instrument which created the confederacy, and is therefore 
equally fortified against attack. It is the independent character of 
these two classes of government, which has caused some eminent 
minds in America to doubt whether the judicial power of the union 
extends to the determination of the validity of state laws, when they 
conflict with the federal constitution. It has been supposed that there 
could be no arbiter in the case; and that the states, nay, each of 
them separately, must necessarily possess a veto upon the decisions of 
the national tribunal. 

Mr. Hume, in a short essay " on some remarkable customs," has 
stated as a singular fact, that the legislative authority in the. Roman 
commonwealth resided in two distinct assemblies : the comitia of the 
centuries, and the comitia of the tribes, acting independently and con- 
currently ; each having a veto upon the acts of the other, and a right 
to carry any measure by its single authority. And this example has 
been relied upon, together with other views, by the able author of 
"New Views of the Constitution," in support of the veto power of the 
states. But the American government is a government " sui generis," 
and it is not safe to resort to other political systems for the purpose 
of finding analogies. Admitting the fact to be as stated by Mr. 
Hume, there are some very important differences between the Roman 
and the American plans. The two comitia were parts of one and the 
same government, and not institutions of two distinct governments. 
Conquering Rome annihilated all the confederacies which once existed 
in Italy, the Tuscan, Volscian, &c, and substituted in their place one 
homogeneous government. Second, the two legislatures were not dis- 
tinct bodies in the same sense as the English houses of lords and 
commons are ; but were composed of nearly the same persons : only 
in one, the vote was collected by classes, and in the other " per capita." 
Third, they did not always preside over the same interests. A simi- 
lar organization of the legislative power has taken place in every 
country where civilization has made slow progress, and where the 
melting down the various classes of society into one body has been 
the work of time. In England, at one period, the nobility, burgesses, 
and clergy, taxed their own order separately. Those assemblies did 
not act concurrently, as is the practice now ; each voted separately, 



CHAP. I.] 



OF FREE INSTITUTIONS. 



383 



and did not wait for the concurrence or disapproval of the others to 
its own bills. 

But inasmuch as the two Roman comitia did frequently vote upon 
the same subject matter, upon the question of peace or war for in- 
stance, there is a difficulty even greater than in the case just referred 
to. There is no part of history which is more obscure, than is the 
constitutional history of Rome. Things which were plain enough to 
contemporary writers, which involved no contradiction whatever, and 
which are therefore not related with precision, but even with careless- 
ness, are full of perplexity at the present day ; nay, were so at the 
time Livy wrote. That two legislative assemblies should exist, each 
possessing an independent jurisdiction upon the same matter; and 
each . therefore armed with authority to undo immediately whatever 
had been resolved by the other, involves so glaring an inconsistency, 
that we are compelled to believe that there must be something further 
in the case which, if it could be seized, would at once dispel the diffi- 
culty. Such a theory of government, if there were nothing further, 
would lead to absolute inaction. The vote of the last assembly ought 
to decide the matter ; but there could be no last, if each was abso- 
lutely independent, and could incessantly revoke the bills passed by 
the other. On the other hand, if there was a stopping place, the 
vote in the last decided the matter, and gave to that body alone the 
supreme legislative authority. 

We know that the plebeian assembly were at first confined to legis- 
late about matters which concerned their own order. Afterward 
they procured the privilege of deliberating, and deliberating only, on 
all matters which affected the general interests. If prior to 372, a 
proposition was discussed in both assemblies, and was carried by the 
vote of the centuries in contradiction to that of the tribes, it could 
hardly be said that those two bodies acted independently. For the 
proceedings in the first were only like the proceedings in one*of those 
voluntary conventions which are so common in America. It might 
deliberate and resolve ; but it had no power to carry any measure into 
effect. It had in other words no real power of legislation. This 
constitution of government is a very common thing even in modern 
societies. The French tribunate in the Abbe Sieye's constitution, 
and which existed for several years, was merely a deliberative body. 
So also the Danish, Prussian, and Russian councils deliberate, but do 



384 



NATURE AND TENDENCY 



[book IV. 



not enact. A still more remarkable example is afforded by the Ger- 
manic legislature. It is composed of three chambers, the princes, 
electors, and deputies of the towns. But the last, although it may 
discuss, is never admitted to vote. An example on a small scale is 
exhibited in the American congress, where the delegates from the 
territories enjoy the full privilege of debate, but have no right to vote 
on any question. 

In the course of time, the two Roman assemblies shifted their po- 
sitions. The popular body which before met to deliberate only, ac- 
quired complete legislative authority : precisely as would be the case 
in the G-ermanic confederation, if free institutions were introduced, 
when the deputies of the people would exercise the entire legislative 
power, leaving it free to the other orders, to meet and deliberate if 
they chose. If this revolution were to take place, if the art of prin- 
ting did not exist, or through some calamity or other, all public 
records and histories were lost, or mutilated, the same puzzle would 
exist as in the case of the Roman comitia, and from the same causes. 
Suppose that the same catastrophe should happen to American insti- 
tutions, and that two or three thousand years hence, some one 
were to read this passage in the very able speech of Mr. Calhoun on 
his resolutions : " the powers not delegated, are reserved, against the 
judiciary, as well as against the other departments." If no copy of 
the constitution could be found, nor any document which shed light 
upon the subject, he might suppose not only that the proposition was 
true, which it undoubtedly is, but that it proved the existence of a 
veto power on the part of the states, even as against the determina- 
tion of the supreme court of the union. But with a copy of the 
constitution in his hand, he would find that that court was by irresis- 
tible implication clothed with the power of deciding upon the consti- 
tutionality of state laws; and that what he had taken to be the 
statement of a fact, was the statement of the view of an individual. 

But the most remarkable circumstance is, that in the debates which 
recently took place, the existence of a veto power, on the part of the 
states, was taken for granted. Its advocates did not confine them- 
selves to showing that there would have been propriety in so organi- 
zing the government. They asserted that its existence was an 
undoubted fact. And such is the exceeding fertility of the human 
mind, not merely in finding reasons for what it conceives ought to be, 



CHAP. 1.] 



OF FREE INSTITUTIONS. 



385 



but in converting its conceptions into reality, that numbers of people 
in one part of the union, who had never dreamed of the existence of 
such a power, began to hesitate. It may be allowable to doubt, 
where one is obliged to search in the dark caverns of antiquity for 
materials to guide our judgments. But the institutions of the United 
States are open to the apprehension of every one. If what they 
ought to be admits of discussion, what they really are is matter of 
history. 

The extreme novelty, not to say the alarming tendency, of such a 
power in a country where infinite pains have been taken to establish 
regular government, compelled those who advocated it* to assume 
that congress were bound to call a convention to amend the constitu- 
tion, whenever a single state dissented to a law as unconstitutional. 
In this way the mischief of civil war, which would otherwise be inev- 
itable, was sought to be avoided. But in order to attain this end, 
the assumption went still further. It was insisted, that when the 
convention assembled, the proposition should be, not to insert by way 
of amendment the limitation upon the power of the federal govern- 
ment which a single state had contended for, but to insert the power 
claimed and actually exercised by congress, with the consent of every 
state but one. Every one will perceive the immense difference which 
is made by only changing the form in which the question is put. In 
the one way, the constitution will be amended by a very small 
minority of the states ; in the other, it can only be effected by a very 
large majority. Now admitting that congress may sometimes tran- 
scend its powers, and that this way of proceeding would arrest it; the 
inquiry properly is, not what would be the effect in one or two 
instances, but what would be the effect in all time to come, and in the 
numberless instances in which the states, encouraged to resistance, 
would succeed in paralyzing the operations of the government? Is 
there not, so far as we proceed upon any known principles of human 
nature, infinitely more security in the vote of a majority of congress 
and three-fourths of the states, than in a very small minority of both ? 
We may admit that there are certain dormant powers residing in 
every community, and that the right to resist an intolerable tyranny 



* " New Views of the Constitution," by John Taylor ; and Calhoun's speech, 
1832-3. 

25 



386 



NATURE AND TENDENCY 



[book IV. 



is one of them ; but this does not permit us openly to recognize the 
existence of a wild excess of power, and to insert it as a standing pro- 
vision in the constitution of the government. 

The mode of calling a convention to amend is one of the parts of 
the constitution which is least liable to misinterpretation. It can 
only be assembled with the consent of two-thirds of the states, or 
two-thirds of both houses of congress. The effect of the doctrine in 
question would be to give this power to a single state. Not that this 
view would be taken by its advocates, for our own arbitrary concep- 
tions are able to give shape and form to almost anything. It would 
still be insisted that two-thirds of congress, or two-thirds of the state 
legislatures, must concur in calling a convention. But if two-thirds 
or a majority in either case were convinced of the constitutionality of 
the law in existence, it is plain that a convention could only be 
assembled by the authority of the single dissenting state. For there 
is no way in which we can conceive of a legislative body acting, at 
any rate of its having a right to act, but by persuasion of the correct- 
ness and lawfulness of what it does. To assert that it is bound to 
call a convention, against its most settled convictions, is to assert 
that it is bound to call one upon compulsion. Nor can any human 
ingenuity make it otherwise. 

It is an established maxim in American institutions, that the gov- 
ernment can no more concede an ungranted privilege, than exercise 
an ungranted power. To concede a privilege is to communicate a 
power ; and is guarded with the same caution as the usurpation of 
authority. If it had been intended that a convention should be 
assembled, not only when two-thirds of Congress were convinced of 
the expediency of so doing, but upon the complaint of a single state, 
the constitution would have said so in plain words. There cannot be 
a shadow of doubt upon the subject. The two cases are totally 
distinguishable from each other. Each affords a specific occasion for 
acting: and to suppose that the one was intended to involve the 
other, would argue a confounding of two things, unnecessary, impro- 
bable in the extreme, and full of mischief. But to have inserted in 
plain language the provision contended for, would have been so start- 
ling, that every member of the convention would have recoiled from 
it. Strange as it may seem, therefore, there is no possible way of 
claiming the existence of any such power, except upon the ground 



CHAP. I.] 



OF FREE INSTITUTIONS. 



387 



that it has been absolutely omitted in the constitution. It is impos- 
sible to defend usurpation by law, but it is often possible to argue 
plausibly against law. 

Not only has the constitution forbidden the exercise of the veto 
power, by refusing to grant it, and by prescribing a mode of amend- 
ment absolutely inconsistent with, and repugnant to, its exercise ; it 
has closed the door upon all controversy, by creating a tribunal which 
shall be the ultimate judge in all controversies between the state and 
federal governments. On the 13th June, 1787, in the convention 
which framed the constitution of the United States, it was moved by 
Mr. Eandolph, and seconded by Mr. Madison, that the jurisdiction 
of the national judiciary shall extend to all questions which involve 
the national peace and harmony. This resolution was passed, and 
was embodied by the committee which had charge of it, in the pre- 
cise and definite language in which the power is clothed in the third 
and sixth articles of the constitution as ratified. Not, I do not pre- 
tend to say, that a doubt may not still be raised; for it is possible 
for an ingenious mind to doubt every thing. But when I observe 
that the constitution, and the laws made in pursuance of it, are de- 
clared the supreme law of the land, pry thing in the constitutions and 
laws of the states to the contrary notwithstanding : and when I ob- 
serve that the exclusive right to expound the law in these cases is 
conferred upon a federal tribunal, I am compelled to believe that there 
can be at least no solid foundation for doubt. 

The celebrated author of the Virginia resolutions and report, ad- 
mits that the supreme court of the union is the tribunal of last resort, 
whenever the validity of a state law asserting the existence of an 
unconstitutional power in the states is called in question. The con- 
struction of that clause, which prohibits the states from issuing bills 
of credit, &c, he declares is referred to that tribunal. This is in 
effect a surrender of the whole ground of argument ; for the prohi- 
bitions on the power of the states are as much a part of the consti- 
tutional compact, as are the limitations on the power of the federal 
government. And if it be true that, in all questions which relate to 
the boundary of power between the two governments, there is no 
common umpire, and neither has the right to decide, there is no rea- 
son for ascribing supreme authority to the court in the one case, which 
does not equally exist in the other. 

* 



388 



NATURE AND TENDENCY 



[book IV. 



There is an interesting problem in government, which may be thus 
stated : when is it that two political powers in the state being set up, 
the one against the other, their mutual rivalry will lead to a just 
balance of authority, and conduce to a successful administration of 
public affairs? And the answer is, that this adjustment of the parts 
of government will be safe, whenever these two rival authorities are 
compelled to act concurrently, and when they are controlled by some 
common authority, which is superior to both. The various depart- 
ments, the legislative, executive, and judiciary, have rival interests; 
but they are amenable to one common power, and they co-operate in 
carrying out one plan of government. So on a smaller scale, the 
court and the jury are set up against each other, with power in each to 
overrule, " ad infinitum," the determination of the other. But they are 
bound by one common ligament to the people, and combine in admin- 
istering the same laws. The Roman tribunate may be mentioned as 
an example of the same class. It was, like the senate and the 
"comitia," a constituent part of one and the same government. 

In the artificial forms of government, only one of these conditions 
is complied with; the three departments conspire in the administration 
of the same system, but their responsibility to a common constituent 
is very imperfect. And the consequence is, that one usurps nearly 
all power, or an interminable conflict exists between them. In pro- 
portion as the popular power is raised, and pure monarchy is trans- 
formed into limited or constitutional monarchy, the responsibility 
becomes direct and positive, and the departments are more easily 
retained within their respective spheres. The walks of private life 
afford a similar analogy. How is it that so many thousand individuals, 
all armed with propensities and desires which constantly stimulate 
them to run counter to the general interests, are so restrained as to 
produce any thing like tolerable tranquillity in society. The tribunal 
of public opinion, which represents those interests, controls them all, 
and produces regularity of behavior in those numberless instances 
which the laws would never reach. 

It would have been wonderful then if the American people, after 
establishing free institutions, had so far spoiled the original design as 
to create a counterbalancing force to the system, in the sectional and 
particular interests of one member of the confederacy. Circum- 
stances may occur, which would render it meritorious in a state to 



CHAP. I.] 



OF FREE INSTITUTIONS. 



389 



remonstrate, and to take high ground, in order to induce a change in 
the public measures. But it must be a very extraordinary case — a 
case which must make the law for itself, which would justify civil war. 
There may be secrets in public as well as in private life, and a state 
which resists the laws of the union, may calculate on the length it 
may go, in order to procure a compromise, and may at bottom deter- 
mine to go no further. But the statesman who should draw the 
sword, if compromise failed, would incur the transcendant ignominy, 
as well as merit, of going into battle without his shield. No man has 
a right to be brave at the expense of his patriotism. 

In the Germanic confederation, there was a tribunal in some respects 
resembling the supreme court of the United States. The chamber 
of Wetzlar, or Westphalia, possessed exclusive jurisdiction in deciding 
upon disputes between members of the empire. But it had no power 
to execute its decisions. The laws operated not upon individuals, but 
upon states; and a sentence of the supreme judicial tribunal had 
no higher effect. The consequence was, that it became necessary to 
resort to force, and to this end the empire was divided into circles, 
the entire military force of which was at the disposal of the emperor, 
to enable him to execute the sentence of the court against a refractory 
member. Under the new constitution of 1815, a different organization 
took place. If the rights of one state are invaded by another state, 
the injured party must choose one of three members of the diet, 
selected by the defendant; or if the defendant neglect to select, the 
diet is bound to name them. And the court of final resort, in the 
state of the member thus chosen, decides the case. And if the party 
against whom the judgment is pronounced does not obey, a military 
force is resorted to, to coerce submission. There does not appear to 
have been any judicial tribunal, either under the old or the new con- 
stitution, for the purpose of settling disputes between the states and 
the confederacy. The diet, or national legislature, seems to have 
possessed this power. The American system stands alone amid the 
institutions of the world. And although it was a natural consequence 
of the adoption of the perfect form of confederation, yet as this spe- 
cies of government is a work of the greatest refinement, and the 
result of a very high state of civilization, the organization of the 
national judiciary may be pronounced one of the greatest achieve- 
ments which political science has made. 



390 



NATURE AND TENDENCY 



[book IV. 



There is a tribunal of another European state, which it is curious 
to notice, in consequence of its novel mode of procedure, although 
it is never called to decide upon the conflicting rights of different 
governments. The court of errors, or of cassation, in France, is the 
highest judicial tribunal in the kingdom. And the principle on which, 
until recently, it proceeded was this : if the judgment of an inferior 
court was reversed, the case was sent back to be tried again. If the 
court below persisted in its error, and the cause was again appealed, 
and the court above reaffirmed the judgment before pronounced, it 
was sent back a second time. But if the inferior court still perse- 
vered in its error, the decree of the court of cassation no longer 
afforded the governing rule. The legislature was then appealed to, to 
settle the law, by a declaratory act. But the absurdity of the scheme, 
the temptation which it held out to the local tribunals to resist the 
judgment of the highest court, and to unsettle all the principles of 
law, produced so much mischief, that in 1837, the English and Amer- 
ican procedure was adopted ; and the determination of the court of 
cassation is now final, and absolutely binding upon all other tribunals. 

It is not uncommon to meet with this odd combination of liberty 
and power in monarchical government. The system of monarchical 
rule is itself a compensation of errors ; where if the weight presses too 
much in one part, it is carelessly relaxed, or altogether removed in 
another part. The most remarkable example of this is contained in 
"magna charta," which authorizes the barons to pursue and to kill 
wherever found, the monarch who presumes to violate any of its pro- 
visions. It legalizes civil war all over the land : and England was 
accordingly a scene of confusion and violence for more than two cen- 
turies afterward. It is to the regulated liberty which free institu- 
tions introduce, that we must look for a salutary restraint upon the 
actions of men, and as the only means of giving supreme authority to 
the laws. 

The reason why no tribunal, like the supreme court of the United 
States, is known in monarchical or aristocratical governments, is be- 
cause too much instead of too little power is condensed infthe politi- 
cal institutions. The king and nobility having acquired an extrava- 
gant share of authority, there is no way of subjecting their public acts 
to the scrutiny of a regular legal investigation. Questions cannot 
arise, because as there is no popular constitution, the right is all on 



CHAP. I.] 



OF FREE INSTITUTIONS. 



391 



one side. The establishment of such a system as the American, is a 
sure indication that the odious maxim of the sovereignty of the gov- 
ernment is abjured, and that of society substituted in its place. Then 
for the first time questions arise between government and the mem- 
bers which compose it ; for the same fundamental ordinance which is 
obligatory upon the one, is obligatory upon the other. The notion 
that public rights are unsuited to such a mode of proceeding, grows 
out of the idea that they are of too high a dignity to be submitted to 
the same examination as private rights. The notion, then, is anti- 
republican in the extreme. All public as well as private rights, are 
rights of the people. Formerly government was not amenable to any 
tribunal, while private citizens were. But as soon as the basis on 
which government rested was changed ; the moment that its whole 
authority was referred to the consent of society, the rights of govern- 
ment and those of its members were placed upon the same footing. 
The constitution of the United States does not imitate " magna charta," 
— the. makeshift of a semibarbarous age — and authorize one mem- 
ber of the confederacy to place its veto upon the most solemn acts of 
the government. It does not, in order to settle a question of right, 
first unhinge the notions of justice, but fortifies the one by guarding 
and maintaining the other. It submits national and state controver- 
sies to the calm and patient investigation of a tribunal, which, as it 
represents both parties, is eminently adapted to compose the angry 
feelings of both. 

There is infinite convenience in administering the government, 
where the public authority is made to act directly upon individuals. 
The laws are then executed with promptness and facility. But it is 
not for the sake of convenience merely, that the plan is adopted. 
There is another and a higher end which is designed to be effected ; 
and that is to banish civil war, to preserve internal tranquillity, in 
short, to uphold civilization itself. The form which all questions take, 
their submission to a judicial instead of a political tribunal, is an 
immense advantage to the cause of free institutions. And admitting, 
what must be admitted, that every human tribunal, however skillfully 
contrived, must be subject to error; yet all who have had any expe- 
rience of human affairs, will see the great importance of having some 
tribunal of dernier resort ; some tribunal, in other words, which shall 



392 



NATURE AND TENDENCY 



[book IV. 



be able to speak with authority, after it has deliberately examined 
and decided. 

There is a peculiarity in the form of confederate government estab- 
lished in America, which sheds great light upon this subject, and 
points to the supreme court of the union as the most fit tribunal to 
decide upon questions of controverted jurisdiction. The national 
government is not represented in the states, while on the other hand, 
it is itself a mere representation from the states. Senators are elec- 
ted by the local legislatures, the president and representatives are 
chosen by the people of the states, and not by the people as com- 
posing one aggregate community, and the judges are chosen by the 
two first, and from the districts in which they reside. But there is 
no similar representation of the national government to be found in 
the executive, legislature, or judiciary of the states. Now all con- 
federacies are not constructed in this manner, nor was there any 
absolute necessity why the American should have been so. But a 
little reflection will show that it contributes materially to promote 
one very important object, and that is, the complete separation of 
the powers of the two classes of government, the national and the 
state. i ; 

Before the union of Scotland and Ireland with England, indepen- 
dently of the fact that there were no local executives like the gover- 
nors of the American states, the two former countries being presided 
over by the king of England, this officer as representing the central 
government, appointed the members of two estates in the Scoth par- 
liament, the nobility and bishops, and nominated a certain proportion 
of the lords of articles, by whom the real legislative business of 
Scotland was transacted. In Ireland, until within a few years before 
the union, no law could even be propounded to its parliament, until it 
had received the previous assent of the English parliament. The 
case in both instances was the reverse of what it is in the United 
States. The federal head was effectively represented in the local 
governments; while, on the other hand, those governments were not 
represented by the national executive, legislature, or judiciary. Or, 
to take another example : the provinces of Holland are a confederacy 
in a much more strict acceptation, than was the British government ; 
for there is a more complete separation of the local from the general 
interests. Each province has its own legislative assembly, and one 



CHAP. I.] 



OF FREE INSTITUTIONS. 



393 



chamber of the states general, or federal legislature, is composed of 
representatives chosen in the provinces. But the provincial govern- 
ments differ exceedingly from the state of governments of America. 
They are intended to administer the local interests; and should, in 
order to carry out this design, represent exclusively the local popula- 
tion. But this is not the case. Not only is the number of the 
members of the chamber of deputies, and of the electors who choose 
them, fixed by the federal executive ; but he nominates the members 
who compose the upper house in every one of those provincial legis- 
latures. 

The American government would have resembled the Dutch, if the 
plan of a constitution presented to the convention by Mr. Hamilton 
had, been adopted. That plan proposed that the governors of the 
states should be appointed by the federal government, and that they 
should have a negative upon the laws passed by the state legislatures. 
The federal government would then have been effectually represented 
in the state governments. The same object would have been accom- 
plished in another form, if the plan advocated by Mr. Pinckney and 
Mr. Madison had been accepted. This proposed that the national 
legislature should have power to negative all laws of the state legis- 
latures ; not merely such laws as were repugnant to the federal con- 
stitution, but all laws which appeared improper. There would still 
have been this difference between the American, and the Dutch and 
former British confederacy: that in the former, the states are repre- 
sented in every department of the national government, whereas in 
the second, they are very imperfectly represented, and in the last, 
they were not represented at all. There would have been much 
stronger reasons, therefore, in the first, than in the two last instances, 
for creating a supreme tribunal to decide upon the conflicting rights 
of the two classes of government, and vesting the appointment of its 
members in the federal head. Those plans, however, and others of a 
similar character, were avoided ; and the constitution adopted is ac- 
cordingly the only example of the perfect form of confederate govern- 
ment which has any where been known. It fulfils the three indis- 
pensable conditions of that species of government. First, there is a 
complete separation between the general and local interests. Second, 
the laws operate upon individuals, not upon governments ; and third, 
the federal head is a mere representation of the states, but has no 



394 NATURE AND TENDENCY [book iv. 



power to intermeddle in their domestic legislation. This mode of 
constructing the government, determined the character and jurisdic- 
tion of the tribunal of last resort. It was a .judicial tribunal : 
1st. Because the laws were designed to act upon persons. 2d. Be- 
cause the process of analysis, by which the unconstitutional feature 
in a law is detected, is more completely reached in that form of pro- 
ceeding. 3d. Because the constitution and character of such a tri- 
bunal necessarily shuts out the influence of party feelings, so fatal to 
the firm and just appreciation of what is right. The members of this 
tribunal were appointed by the federal government, because that gov- 
ernment is made up of a representation from the states, and is in no 
way represented in the state governments. And if ingenious minds 
should still seek to raise objections, and insist that a jurisdiction of 
the kind conferred upon the supreme court savors too much of politi- 
cal power, it may be answered : 1st. That this constitutes one of its 
chief recommendations. 2d. That political power must necessarily be 
wielded by some one or more of the citizens, and that the members of 
the court are alike citizens with the members of any other depart- 
ment. 3d. That it is infinitely desirable to break up political power 
as much as possible, to distribute it among several tribunals, instead 
of condensing it in one. 

We may illustrate the great advantage which is derived from giving 
to all the movements of the government, the greatest simplicity imag- 
inable, by an institution which prevails in America, and which is now 
sought to be imitated in all the constitutional monarchies of Europe. 
The popular elections are not conducted in counties, much less in 
larger divisions of districts, but in the townships or parishes. Instead 
of assembling a vast multitude of people on one spot, to engage in 
broils and fights, this army of electors is cut up into minute parcels, 
each of which is separated from the other by miles. The force of 
party spirit is broken ; and when the election is over, universal tran- 
quillity is established. This is an emblem of American institutions 
in the general, which undertake to compass the most important end in 
the easiest manner possible. The organization and procedure of the 
supreme court of the union, is an application of the same principle to 
things apparently different, but which are in reality the same. We 
want an institution which shall have power to protect us against the 
rage of party spirit, in those cases where party spirit would be most 



CHAP. I.] 



OF FREE INSTITUTIONS. 



395 



fatal; an institution which shall be able to appease the sharpest 
discontents among the states by the employment of calm judgment and 
reflection. The reaching rights of this ponderous character, through 
the simple and unostentatious forms of the law, is, as I before said, the 
chief recommendation of the system. If it savors of political power, 
this power is at any rate morseled into small fragments, is only em- 
ployed in detail, and on occasions where there is the least temptation 
to render it subservient to political ends. And although we may not 
be authorized to say that it is the best conceivable plan, we are well 
justified in declaring it the best practicable one. 

The constitution of the United States is a compact. Every pop- 
ular constitution is both a compact, and a delegation of power, 
whether the government be a consolidated, or a federal one. In the 
first, the compact is between the people, and the delegation of power 
is by them : in the second, the compact is between the members of 
the confederacy, and the delegation of power is by them only. And 
when the constitution is framed, the government created represents 
the joint authority of the states. This different mode of proceeding 
does not render the authority actually granted less binding in the one 
case, than in the other. It alters the structure and form of the 
government; but the compact, or constitution, is equally obligatory in 
both. And as in aggregate community, neither the citizens, nor even a 
majority of the people, can go beyond the compact, and interpose a veto 
upon the acts of the government ; so in the confederate government, 
neither a single state, nor a majority of the states, have any right to 
do the same thing. No one ever heard that when government was 
acting within the legitimate sphere of its jurisdiction, the jurisdiction 
itself should be questioned, because the measures pursued were not 
agreeable to every one. If there were no discontent in the state, 
government would be unnecessary. Civil institutions are appointed 
for the purpose of melting down the idiosyncrasies of different parts 
of society ; and it is not merely from a noble self denial, but from a 
sense of evident interest, that men are ordinarily persuaded to lend 
their support in upholding the influence of these institutions. 

The division of the territory of the United States into distinct 
states, was an accidental circumstance ; but the advantage which has 
sprung from it, is not accidental. If the people of America had com- 
posed one aggregate community, it would have been the hight of 



396 



NATURE AND TENDENCY 



[book IV. 



wisdom to imitate the present plan, to have created local governments, 
with complete jurisdiction over the local interests, and a central 
government to preside over the common interests. The scheme is in 
effect carried out to a considerable extent in the individual states. 
The counties and townships are lesser jurisdictions inclosed within a 
larger one, administering their domestic affairs skillfully and economi- 
cally, because they are not mixed up and confounded with the general 
interests of the state. And if this form of civil polity was the result 
of a constitutional compact at the first foundation of the government, 
the counties and townships would possess complete sovereignty within 
their respective spheres, which could only be alienated, or altered, in 
the mode prescribed by the constitution. For the sovereignty of the 
parts of which the community is composed, does not depend upon the 
time when they became sovereign; but upon the fact that they are so. 
Nor is it possible for ingenuity to frame further objections, and insist 
that the parts would in that case be the offspring of the central au- 
thority; whereas, in the confederate government, the central authority 
is itself but an emanation from the parts. For in both instances, the 
form of government is the offspring of the voluntary consent of the 
parts : only in the one, the parts are more numerous, as they are 
made up of individuals ; in the other, they are composed of states, or 
separate collections of individuals. 

Now if, in a state government thus constructed, the original com- 
pact should appoint a tribunal for the purpose of settling constitutional 
disputes between these two sets of government, no one of the parts 
could object to its jurisdiction and interpose its veto, because the law 
complained of did not equally benefit all the parts. Nor could it do 
so, even if the law declared to be valid, were in reality invalid ; since 
in theory such a supposition would be itself unconstitutional, while in 
practice it would undermine all authority — that of the parts, as well 
as of the whole. 

It is remarkable that those who advocate the veto power of the 
states, have taken for granted the existence of a power which is no 
where recognized in the constitution ; and at the same time deny the 
jurisdiction of the supreme court, which is contained in language as 
unequivocal as could be desired; as unequivocal as that which confers 
jurisdiction on any other department : so much do times of high party 
excitement confound all our notions of justice, and make shipwreck of 



CHAP. I.] 



OF FREE INSTITUTIONS. 



397 



the most settled principles of government. As a large part of our 
opinions and beliefs are not absolutely determined by the objects with 
which they deal, but are modified by the structure of mind and the 
temperament of each individual, it is perhaps surprising that unifor- 
mity of opinion does exist to as great an extent as is actually the 
case. But in order to correct those aberrations in which we are 
so liable to fall, upon all political questions, it is of great impor- 
tance to view them at a time when the judgment will be least liable 
to be perverted by any disturbing influence. At a time when party 
spirit ran high, C. J. McKean ventured to express the opinion that 
it would have been well if the constitution had made it obligatory 
upon congress to call a convention whenever a state dissented from a 
law as unconstitutional. This singular opinion of that eminent man, 
which admits that the power does not exist, was easily molded by 
the fertile genius of John Taylor, of Virginia, into a subsisting 
reality, and has been proclaimed by other minds of equal fertility 
and strength, to be the panacea for all irregularities in our system of 
government. 

To hear some persons talk of the federal government of America, 
one would suppose that it was a foreign government, seated in a 
remote country, presiding over the general interests of the states, and 
yet without any visible connection with or dependence upon them. 
One would hardly recognize a government which derived its whole 
being from the states, and which was constantly recruited and 
supported by them. 

There is one way in which I can conceive that an important revo- 
lution may be effected in the structure of the supreme court. The 
judges may be appointed for a term of years, and the marshals may 
be elected by the people of the respective states. The relation which 
the judges bear to the federal government will not be changed, the 
bond which now connects them will not be broken ; but it will be 
materially weakened. The wisdom and authority of the judges will 
be in some degree eclipsed, not only in their own eyes, but in the 
eyes of all those who are called upon to assist in executing a judg- 
ment. I think I can already discern symptoms of a reluctance, in 
those state courts whose judges are elected for a term of years, to 
touch a constitutional question, if it can be avoided: a disposition 
which is in every way commendable, as it does not necessarily imply 



# 



398 



NATURE AND TENDENCY 



[book IV. 



a shrinking from duty, but may produce much more caution than 
would otherwise be observed. There is an important rule on this 
subject, which is, that every law is "prima facie" to be deemed con- 
stitutional, and that the reasons to show the reverse must be very 
convincing. But the duty of judges in America is peculiar: they 
may have to decide upon two conflicting laws, or two conflicting con- 
stitutions, when the "prima facie" presumption cannot be presented 
with so much distinctness. The result, however, may be the same; 
more prudence and caution will be observed in weighing the argu- 
ments on both sides. The court will more readily retract an erroneous 
judgment, when it is less accessible to that pride of opinion which 
makes it desire on all occasions to give an example of consistency 
with itself, even at the expense of inconsistency with the rule of right . 



CHAP. II.] 



OF FREE INSTITUTIONS. 



399 



CHAPTER II. 

THE EXECUTIVE POWER. 



It is more difficult to form a distinct idea of the executive than of 
any other department of the government. In some countries it com- 
prehends nearly the whole authority of the state, not to be sure dis- 
pensing with laws, but usurping to itself the sole power of ordaining 
them. In absolute monarchies, the prince is legislator, judge, and 
ministerial magistrate. The permanence of the executive is doubtless 
one reason why, in the majority of governments, it has been the most 
imposing authority. The minds of men are more strongly impressed 
with the notion of government, when its image is constantly before 
them, than by the occasional or periodical exercise of authority by a 
legislative body, the members of which are disbanded during a great 
part of the year. The political institutions of a state may be said to 
perform two distinct offices : First, to hold society together, to main- 
tain civilization ; and secondly, to administer the interests of that 
society. The last implies a mere agency, a delegation of power by 
the members to conduct the affairs of the community with judgment 
and discretion. Nor is the first at all inconsistent with the same 
notion of delegated authority; on the contrary, the various elements 
of which society is composed, its divers population, and different 
interests, are never so firmly cemented together, as where government 
represents the will of the people. But this is a character which it 
has seldom acquired. The institution of a prince, termed by way of 
eminence the executive magistrate, has been deemed necessary almost 
every where, to bind together the parts of society, and to give a 
character of unity to the authority of the state. It is this notion of 
unity perpetually revolving in the mind, in matters of government as 



400 



NATURE AND TENDENCY 



[book IV. 



well as of religion, which gives a shape to the political institutions, 
and enabled the prince to center in himself nearly all power. The 
gradual and unobstructed progress of society, wherever it takes place, 
at length sets bounds to this state of things. As civilization advances, 
public affairs become so unwieldy and complicated, that it is physically 
impossible for one mind to preside over them, much less to administer 
them in person. The prince communicates his authority to subordi- 
nate agents, in order to relieve himself from the burden, but by so 
doing he, step by step, diminishes his influence, loses his prerogatives, 
and prepares the way for more regular- institutions. He appoints 
judges and administrative officers, to do thoroughly what he had been 
able very imperfectly to perform. A legislative body soon after makes 
its appearance, at first only representing constructively the society in 
which it is assembled. And as this body will necessarily have a close 
connection with all those affairs which are immediately superintended 
by the ministers of the crown, it ultimately acquires a considerable 
control upon the crown itself. It at first influences, but in the pro- 
gress of time, it absolutely determines the appointment and removal 
of those ministers. The prince, in order to relieve himself from the 
cares of public business, and to have more time to devote to the 
gratification of his pleasures, or ambition, assists in raising up a host 
of officers in the state; by so doing he causes a larger proportion of 
the people to be trained to the understanding and management of 
public affairs, and without intending any such thing, creates a coun- 
terpoise to his own authority. Through the operation of the same 
causes, which speedily give birth to some species of legislative assem- 
bly, the judges no longer expound a code of laws enacted by the sole 
authority of the king. The legislature is at first permitted sparingly 
to interfere with such high matters, but in progress of time it is 
enabled to speak out audibly and intelligibly, and the judges are then 
freed from a servile dependence upon the executive magistrate. He 
retains the power of appointment, but as soon as it is made, a new 
relation is established between the judges and the community at large, 
and they are declared irremovable at his pleasure. Their responsi- 
bility becomes both more strict and more extensive, and the laws are 
consequently administered in a much more enlightened manner than 
before. The powers which are thus gradually wrested from the king 
are not extinguished, but they are deposited in other hands where 



CHAP. II,] 



OF FREE INSTITUTIONS. 



401 



they are even amplified and strengthened. The commonwealth gains 
in power much more than the monarch loses. In order that the 
increasing demand of the state for the services of its citizens may be 
fully answered, knowledge and education are sought after by every 
one. And thus at length, that invisible but powerful authority which 
we denominate public opinion, comes to preside over every movement 
of the government, and to fulfill more completely than ever the notion 
of unity, which continues to float in the mind, whatever may be the 
mutations which the political institutions undergo. 

It is through a circuitous process, then, that a gradual separation 
of the executive from the legislative and judicial authority takes 
place, and that three distinct departments are created. But this 
separation is hardly ever complete. The same difficulty which we 
have to encounter in every other branch of knowledge, meets us with 
redoubled force in political philosophy. The principles are given, 
but the facts do not all agree, or the facts are given, but the princi- 
ples which we look to do not exactly correspond. The limits however 
which are drawn around the human mind, even in matters of this 
kind, are never so absolutely fixed but what we may sometimes escape 
from the dilemma. It is often possible, by the application of princi- 
ples which do not strictly correspond with the facts, to produce an 
alteration in the facts themselves, to give rise, in other words, to an 
altered condition of society, and then the disagreement will in great 
part disappear. 

The thorough introduction of the elective principle into the govern- 
ment, effects a separation of the different departments from each 
other. This is a natural and a very important consequence of the 
establishment of representative government. Where public officers 
are chosen by the people, it is with a view to the performance of some 
prescribed duty, and the exercise of some precise and definite power. 
But as soon as a practical and determinate end is sought after, the 
functions of the different officers lose all the vagueness and ambiguity 
which before hung over them. The prince consulted materially the 
interests of society when he laid down some of his prerogatives, 
although it was only for the sake of his convenience. But the people 
go straight forward to the same end, as soon as they possess the 
electoral franchise in its full extent. A feeling of convenience also 

determines them to remold the institutions. But as this view to 
26 



402 



NATURE AND TENDENCY 



[book IV. 



convenience has reference to the general good, to the practical affairs 
of society, the work is performed more completely by them. 

As the prince is not elected but is a hereditary magistrate, the 
powers with which he is clothed have been determined by accident 
only. Hence his prerogatives are neither adjusted by any distinct 
rules, nor to the actual exigencies of society. His title commenced 
at some remote period, when society was full of noise and confusion — 
when the human mind was not sufficiently instructed, nor the interests 
of the community sufficiently developed, to give any determinate 
character to his functions. At first, by dint of superstition, or force, 
afterward, by means of the vast influence which his strong position 
enables him to command, he succeeds in maintaining the most ex- 
travagant and contradictory powers, and this long after society is 
prepared for an entire change in the structure of his office. 

When not merely the public officers who fill the various depart- 
ments are elected, but in addition to this, the entire system of gov- 
ernment is founded upon a written constitution, the opportunity and 
the power to effect a separation between these departments are both 
increased. The experience which has been previously acquired, the 
adaptation which each part of the government has obtained in prac- 
tice, to one appropriate end and no other, are seized by those who 
assemble in the constitutional convention, and suggest certain funda- 
mental rules, by which to give fixation and stability to the plan. A 
constitution is indeed only a generalization of the diversified rights, 
duties, and exigencies of men in society. And when the generaliza- 
tion is made upon reflection and deliberation — when it is brought 
to bear upon matters which have been the subject of actual experi- 
ment, it is necessarily more distinct as well as more comprehensive. 

It has been proposed to elect the president of the United States by 
lot. This mode of choice is thought to be peculiarly adapted to a 
democratic republic, which presupposes that all the citizens stand 
upon an equality. This is to take a one-sided view of the matter, a 
course which is always attended with error. The great principle of 
equality demands that all the citizens should have free liberty of 
choice in selecting persons capable of managing their affairs. We at- 
tribute to them equal rights, and straight forward adopt an arrange- 
ment which overthrows the most important of those rights. We start 
with the principle of liberty, and then inconsistently introduce a 



CHAP. II.] 



OF FREE INSTITUTIONS. 



403 



principle which causes the actions of every one to be controlled by a 
rigid necessity. The principle of equality does not require that all the 
citizens should succeed in turn to the presidency, for that is an im- 
possibility: but it does require that all should be equally eligible. 
Now the only way in which it is possible to reconcile this right with 
that of free choice, is by the establishment of the elective principle. 
If there were any inconsistency between the two, it is plain that the 
former should yield to the latter, as being of superior importance. 
But in truth, there is no inconsistency. The right to hold office 
would be a frivolous and unmeaning one, if it were not combined with 
the principle of election. That cannot be called a right, whose ex- 
istence is absolutely dependent upon blind chance or an irreversible 
necessity. That only is a right in society which springs from the free 
consent of society. It is because the principle of election is calcula- 
ted to carry to perfection all the other rights of mankind, that it is 
made the corner stone of a republic ; and it is because the lot would 
confound and subvert those rights, that it should be rejected. 

If in a community of twenty millions of people, the chief magis- 
trate, legislature, and judges, were chosen by lot, it is evident that 
the selection would, in the greater number of instances, be very un- 
fortunate. That it might be so, would be a sufficient objection ; but 
that it would necessarily be so, is an insuperable one. Offices are 
created because they are indispensable to the management of the pub- 
lic interests, to the well being of society. But the office is an empty 
thing, a mere abstraction, unless it is filled by some one who is com- 
petent to discharge the duties : and integrity, ability, and experience, 
are all necessary to fulfill this design. A state, then, which is founded 
upon republican principles, which undertakes to procure the greatest 
happiness of the greatest number, is entitled to the services of those 
citizens who possess these qualities. That the elective principle will 
not invariably secure this advantage, is no objection to it ; but that it 
does actually attain it, to a much greater extent than any other sys- 
tem which has been devised, is a conclusive reason why it should be 
adhered to. 

In order to avoid the difficulties which attend the lot, it has been 
proposed to combine with it the principle of free choice, as in the case 
of the Venetian doge. Hillhouse's plan, the earliest which was 



404 



NATURE AND TENDENCY 



[book IV. 



presented to the American public, and the parent of all others, contem- 
plated the election of president by lot from among the senators. A 
plan, presented twenty-five years later, proposed that he should be 
chosen in the same way from members of the house of representatives. 
This, to be sure, reversed the Venetian scheme in which the doge 
was elected by forty-one nobles, they themselves having been ap- 
pointed by lot. The two plans, however, are substantially the same : 
in both, there is a combination of choice and chance. But there is 
no arrangement in which the lot enters as an element, which is not 
objectionable. The lot might fall upon some senator or representa- 
tive who was eminently unfit for the station. The manner in which 
the fortunate individual succeeded to the chief magistracy, would be 
exposed to the same objection as exists to monarchical government. 
The prince reigns by accident, and the selection of the president 
would be determined by accident, also. The community would be 
unable to profit by the lessons of experience; it would not have the 
power on a succeeding occasion, to cure the error which had been 
committed. The lot might fall successively upon those who had not 
the requisite qualifications. 

The objections to a free and untrammeled election, are the very 
argument I should employ in favor of it. They who propose the lot, 
have fastened their attention upon the prevailing spirit of party. It 
is to prevent the eternal din and confusion which it occasions, that 
they have presented this plan. Zealous and patriotic individuals they 
are, for they wish to attain all the good which is attainable ; but they 
are not sufficiently apprised of the means through which alone this 
desirable object can be reached. 

It may be very important that the president of the United States 
should be chosen by a party. Parties, whatever may be the exterior 
form which they wear, almost always contain the elements of great im- 
provement. They are among the instruments which are appointed to 
push the race of mankind forward. The heated passions and fierce dis- 
putes through which they sometimes cause themselves to be heard, are 
the only means in a society not enlightened above what it falls to the 
lot of humanity to be, by which any signal change in the public policy of 
the state, or the condition of the people, can be attained. In elective 
government, public men may be said to be the representatives of the 



CHAP. II.] 



OF FREE INSTITUTIONS. 



405 



ideas of the age, as well as of the grosser interests with which they 
have to deal ; and to give those ideas a visible form, is the most cer- 
tain way of commanding public attention, and of stimulating inquiry. 

It would be a noble undertaking, if it were practicable, to separate 
the mischievous qualities of parties from the good they contain ; to 
suppress the one, and retain the other. But that is impossible as 
men are now constituted. To endeavor to rid ourselves of the anxi- 
eties and sufferings of life, would be an attempt to free society from 
the most wholesome discipline to which it is at present subjected. 
No important end can be attained, perhaps none is worthy of being 
attained, unless it is through some sort of difficulty and danger. 
These are not merely to be viewed as obstructions in the way, which 
it requires some strength to overcome, but as constant monitors to re- 
mind us of our own imperfections, while we are endeavoring to rectify 
those of others. The innumerable annoyances of which party spirit 
is the occasion, are planted in the walks of public life, in order to 
exercise a similar influence. That we complain of them, may be only 
a proof that they have the desired effect. That the lot would con- 
tribute to banish parties from the commonwealth, instead of being a 
recommendation, therefore, is a solid and conclusive objection to it. 

Men undoubtedly take upon themselves a difficult task, and involve 
themselves in a great many troubles, when they undertake to elect 
the highest officers in the state. But it is the only way by which the 
people can be trained and habituated to the practice of self govern- 
ment. If public affairs go wrong, they cannot say it is government 
which has done the mischief, and we will revolt and overturn the ex- 
isting authority ; but they are brought, after a painful and instructive 
experience, to understand that they are themselves the direct authors 
of the public distress, and that they alone have the power to remedy 
it. Thus a great number of petty misfortunes have the effect of 
averting an enormous evil. 

The popular election of the American president, has not been pro- 
ductive of the mischiefs which were anticipated. Instead of wild dis- 
order and misrule, it has been eminently favorable to public tranquil- 
lity. This is a necessary consequence of the elective principle as it is 
applied in the United States. By communicating the electoral fran- 
chise freely, and at the same time distributing into small fragments 
the bodies which exercise it, the ability to do mischief is very much 



406 



NATURE AND TENDENCY 



[book IV. 



abridged. The machinery which sets in motion the elections, is like 
the machinery of a federal government. It acts upon the whole 
mass ; and yet through springs so numerous and so fine, as to com- 
bine all the strength of a consolidated government, with all the free- 
dom of a popular one. The share of power which each individual 
exercises is so small that he is constantly reminded of his insignifi- 
cance, and does not boast of his importance, while the principle of 
the majority is so imposing and authoritative in its influence, as to 
command instant and universal obedience to the laws. It may, in- 
deed, be laid down as a maxim in politics, that the danger to the 
institutions is diminished, rather than increased, in proportion to the 
enlargement of the electoral franchise. 

Representative government imposes a check upon the electors, as 
well as upon the elected. It is not apt to be viewed in this light. 
The accountability of the public officer to his constituents, was the 
thing to which public attention was directed, when free institutions 
were first established. That was a novelty before. No man, it is 
true, ever ventured to deny that he was under an obligation to con- 
sult the welfare of the people over whose interests he presided ; but 
amid the contradictory elements of monarchical and aristocratical 
government, the principle could never be made to have a practical 
operation, much less to assume the supreme authority to which it is 
entitled. A responsibility, however, on the part of the public agents, 
cannot exist in full vigor, without creating a counter principle of equal 
strength and efficacy. The numerous magistrates who are created, 
the regular system of administration which grows up in spite of the 
popular character of the institutions, stamps upon the government a 
degree of authority which either wins or compels the obedience of all. 
Not only is the responsibility of the citizens to the public man in- 
creased, but what is of more consequence, the responsibility of each 
to the whole society is hightened. 

The public officer is made responsible to the people, for the very 
obvious reason, that their interests are involved in every act of his 
public life. A perception on their part of what is advantageous for 
the public weal, is necessary to place the officer in that relation. 
Unless this condition is admitted, the whole theory of representative 
government falls to the ground. Nor is it necessary to entertain any 
fanciful views with regard to popular intelligence, in order to suppose 



CHAP. A.] 



OF FREE INSTITUTIONS. 



407 



that this condition may be fulfilled. There is but one way in which 
that perception of what is useful and fit can be gained, but one way 
in which any sort of practical knowledge can be acquired; and that 
is, by placing those for whom such knowledge is desirable, in a situa- 
tion where they will be sure to realize the consequences which will 
follow from pursuing opposite courses. It is supposed that if the lot 
is established, we shall get rid of all the noise and confusion of elec- 
tions, that everything will go on smoothly, that the officer will feel 
greater pride in the discharge of his duties, when he occupies an 
independent position, than when he was a candidate, and obliged 
before hand to shape his conduct so as to meet all sorts of contradic- 
tory opinions. But this extreme smoothness of public affairs I have 
constantly observed to be inconsistent with much progress in society, 
and to be invariably followed by commotions and disturbances after- 
ward. These commotions are the compensations of a bad system of 
government, and have been the only means by which European society 
has been prevented from falling into the sluggish and inert condition 
of a Chinese population. Popular elections not only afford employ- 
ment to the superabundant activity of the people, but they create 
innumerable checks upon the conduct of public men. They thus act 
by way of prevention, in warding off great mischiefs, instead of 
encountering them, after they have arrived, by calamities still more 
formidable. It is a great mistake to suppose that public men would 
possess more integrity, patriotism, or knowledge, if they were less 
interfered with. The mistake would be fully as great, if we were to 
suppose that the people would be more peaceable and orderly, or 
anything like as inquisitive and well informed on public matters, or 
indeed on any matters whatever, if the lot were substituted in the 
place of elections. I am so persuaded of the utility of the last, so 
well satisfied that the advantages which they procure could be ob- 
tained in no other way, and that these advantages accrue not merely 
in spite of, but in consequence of the inconveniences which are com- 
plained of, that I would dispense with even more of the ease and 
comfort of individuals, if that were necessary, in order to retain them. 
I know no other plan by which it is possible to keep alive the intelli- 
gence of the great bulk of the adult population; none by which it is 
possible to give activity to the popular mind, and at the same time 
to exercise it upon subjects which shall have interest and importance 



408 



NATURE AND TENDENCY 



[book IV. 



enough to lift it above the narrow round of ordinary pursuits. I know 
of no other plan by which it is possible to maintain the integrity, 
industry, and activity of public men. An eminent physician has said 
that life and bodily health are forced states. And so are intellectual 
and moral health. Many hard and disagreeable things are necessary 
to preserve the former, and annoyances, privations, and inconveniences, 
of one kind or other, are equally necessary to preserve the latter. 
There is hardly any one but what would pass away life in a state of 
careless ease, if he were permitted. In youth we are constrained to 
do otherwise by the superintending hand which guides us, and in 
manhood we are driven to exertion, and to the pursuit of laudable 
ends, not less by the wants of life, than by the constant interference 
of others with every plan of conduct which we may pursue. The 
elective system only carries out this part of the economy of human 
nature ; the difficulties and temptations with which it surrounds both 
the electors and the candidates, may force a state of moral and intel- 
lectual culture, but after it is obtained, it becomes the natural state. 
And everything then goes on more easily and quietly than it would 
in any other society. For I do not find that public affairs in the 
United States have been reduced to less system, that they have been 
conducted in a less orderly manner, or with a view to the attainment 
of objects of less magnitude and importance than in other countries. 
On the contrary, I believe that in consequence of the conflict of par- 
ties, the public will has been more steadily directed to the advance- 
ment of the public weal than in any other country. The disputes 
and contentions of parties have been favorable to that unity of purpose 
which is demanded in all human affairs. The more frequent and 
varied these disputes are, the more they help to strip both public 
men and public measures of whatever is adventitious about them. 
The former are observed more readily, and the analysis of the latter 
becomes easier. 

It is not surprising that the popular election of chief magistrate in 
the United States has never led to any political disturbance. The 
elective principle cures the mischiefs which have been apprehended 
from the contests of parties. The lot would deprive us of the most 
valuable means for maintaining free institutions. It would annul the 
use of experience, or render its application impossible. It would cut 
asunder the bond which now connects the representative with his con- 



CHAP. II.] 



OF FREE INSTITUTIONS. 



409 



stituents; and would remove the check which the exercise of the 
elective franchise imposes upon the electors themselves. It would be 
better that the lot should be applied to the choice of any other officer 
than that of president, for in this, the election is on so large a scale, 
that it raises the minds of the people above the narrow and contracted 
views which they are sometimes prone to take of public affairs. It 
gives them large objects to look at, and thus refreshes their feelings, 
and expands their minds. 

There is the greatest imaginable difference between the election of 
a king of Poland, and of the American president. It was precisely 
because there were • no parties of the people in Poland, that that 
unhappy country was filled with confusion whenever the time of elec- 
tion came round. The body of nobles who were masters of the landed 
property, had thereby a mortgage upon the understandings of the 
people. Factions there were, but parties had no existence. It was 
not because the prize was so high ; it was because the election was 
managed by a close body, that Poland was a prey to every species of 
intrigue and violence. Parties are unfavorable to civil commotion, 
while factions engender and support them : one reason of which is, 
that parties in any country of tolerable extent are so large, that in 
order to enable them to act, they must be subdivided into still smaller 
parties — into bodies so numerous as to render intrigue or intimidation 
very difficult : whereas factions concentrate immense power in a small 
compass. The principle of the distribution of power, is applied in 
the one case as well as in the other. Thus in the United States, the 
people assemble at ten or fifteen thousand places to vote for a presi- 
dent ; and in Poland, the election was conducted by a ferocious band 
of nobles all armed and collected upon one spot. The experiment of 
electing the chief magistrate has succeeded in America, because it 
has operated in a manner different from what was expected. It has 
succeeded, because the election is in effect by the people, and not by 
the electoral colleges. 

The unif^ of the executive power is regarded as a fundamental 
principle in political science. In this, there is a striking distinction 
between antiquity and our own times. It is remarkable that almost 
all the capital rules of government have undergone a revolution in 
modern times. In the ancient commonwealths, the principle of rep- 
resentation was applied to the executive, but not to the legislature. 



410 



NATURE AND TENDENCY 



[book IV. 



A hereditary nobility, which has made a figure in the modern Euro- 
pean states, was unknown to the ancient. And the constitution of 
the executive presents us with a third example of the great diversity 
between the old and new system of governments. A plural executive 
was considered, by the ancient lawgivers, as indispensable to the right 
ordering of a state. In the Spartan commonwealth, there were two 
kings, in the Athenian the archons, at Home two consuls. The ele- 
vation of the great body of the people in modern times, has given 
birth to the principle of representation, as applied to the legislative 
body. A hereditary nobility is the offspring of feudal institutions, 
and to the decay of those institutions we may trace the unity of the 
executive power. The chieftain who centered in himself the greatest 
amount of authority, who was able to bridle the ferocity of the other 
barons, and to impose an iron arm upon their will, usurped the supre- 
macy under the title of king. 

De Lalme is the most vigorous defender of the unity of the execu- 
tive, and his views are entitled to great attention. This indivisibility 
of the executive authority, he says, fulfills two very important and 
apparently opposite conditions. Power is more easily confined when 
it is one ; while at the same time, it is placed more completely above 
the reach of assault. But a train of reasoning which is suggested by 
the frame of the English constitution, may be very inapplicable to 
other forms of government; still less may it be entitled to rank 
among the fundamental principles of the science. If our design be 
to establish regal government, if we determine to create an executive 
magistrate, with vast powers and prerogatives, it is certain that we 
will produce one effect. The prestige and luster which will surround 
the office, independently of the positive authority which is conferred 
upon it, will make a powerful impression upon the imaginations of the 
people. They will be awed to obedience, to a bad as well as to a 
good government. The throne will acquire great stability, conspira- 
cies to overturn it will rarely be formed ; although it may be free from 
the wholesome interference of public opinion, it will at any rate be 
placed above the assaults of ambitious men. But these are all con- 
sequences of the artificial character which is at the outset communi- 
cated to the executive ; and unless its imposing prerogatives are an 
inseparable condition from its existence, we are not obliged to leap to 
the general conclusion, that therefore the executive should be one. 



CHAP. II.] 



OF FREE INSTITUTIONS. 



411 



For if, on the other hand, we intend to establish a republican form of 
government, the executive will be elective ; the precise authority as- 
signed to it will be settled by a constitutional ordinance, and